Senate The Politics of Genocide

As per AF's wishes...

In 1941, speaking of the Nazi push to replace extant European cultures and civilisations with a Germanic one (having wiped out Slavs and pockets of Gallic peoples, plus Jews and Gypsies entirely), Sir Winston Churchill declared "we are in the presence of a crime without a name".

In response to this, Jewish, Polish scholar Raphael Lemkin coined the term "genocide." Writing in 1946, he said:


II: The word "genocide"
Would mass murder be an adequate name for such a phenomenon? We think not, since it does not connote the motivation of the crime, especially when the motivation is based upon racial, national or religious considerations. An attempt to destroy a nation and obliterate its cultural personality was hitherto called denationalization. This term seems to be inadequate, since it does not connote biological destruction. On the other hand, this term is mostly used for conveying or for defining an act of deprivation of citizenship. Many authors, instead of using a generic term, use terms connoting only some functional aspect of the main generic notion of the destruction of nations and races. Thus, the terms "Germanization," "Italianization," "Magyarization" are used often to connote the imposition by a stronger nation (Germany, Italy, Hungary) of its national pattern upon a group controlled by it. These terms are inadequate since they do not convey biological destruction, and they cannot be used as a generic term. In the case of Germany, it would be ridiculous to speak about the Germanization of the Jews or Poles in western Poland, since the Germans wanted these groups eradicated entirely.
Hitler stated many times that Germanization [p. 228] could only be carried out with the soil, never with men. These considerations led the author of this article to the necessity of coining a new term for this particular concept: genocide. This word is made from the ancient Greek word genos (race, clan) and the Latin suffixcide (killing). Thus, genocide in its formation would correspond to such words as tyrannicide, homicide, patricide.

Lemkin posited that an attempt to wipe a people from the face of the planet needed an appropriate term; one whose connotation was appropriately severe in scope and conjured up the correct imagery of willful, intended destruction.

Lemkin then went on to posit a point:

Genocide is the crime of destroying national, racial or religious groups. The problem now arises as to whether it is a crime of only national importance, or a crime in which international society as such should be vitally interested. Many reasons speak for the second alternative. It would be impractical to treat genocide as a national crime, since by its very nature it is committed by the state or by powerful groups which have the backing of the state. A state would never prosecute a crime instigated or backed by itself.

By suggesting this, he intended that genocide be a crime to which no state could be permitted to engage in as its concern reached beyond borders. It became a peremptory norm of international law, a jus cogens. A law above the state. Even in the US, with the Constitution being the supreme law of the land - and amendment to the constitution to permit genocide would not be legal or permissible under customary international law.

By its very legal, moral and humanitarian nature, it must be considered an international crime. The conscience of mankind has been shocked by this type of mass barbarity.

To create, therefore, a mechanism for addressing this, he proposed:

Once we have recognized the international implications of genocidal practices, we must create the legal framework for the recognition of genocide as an international crime. The significant feature of international crime is a recognition that because of its international importance it must be punished and punishable through international cooperation. The establishment of international machinery for such punishment is essential.
Thus, it has been recognized by the law of nations and by the criminal codes of many nations that crimes which affect the common good of mankind - as, for example, piracy, unlawful production and trade in narcotics, forgery of money, trade in women and children, trade in slaves - all these are international crimes (delicta juris gentium). For such crimes, the principle of universal repression has been adopted, namely the culprit can be punished not only before the courts of the country where the crime has been perpetrated, but also by courts of the country where the culprit can be apprehended if he escaped justice in his own country. For example, a currency forger who committed his crime in Paris and escaped to Prague can be punished validly in the latter city.
In 1933, at the Fifth International Conference for the Unification of Criminal Law (under the auspices of the Fifth Committee of the League of Nations) the author of the present article introduced a proposal providing for this type of jurisdiction for acts of persecution amounting to what is now called genocide. Unfortunately, at that time, his proposal was not adopted. Had this principle been adopted at that time by international treaty, we would not now have all the discussions about ex post facto law, in relation to crimes committed by the German government against its own citizens prior to this war.


Critical here, in my view, is this sentence; "...because of its international importance it must be punished and punishable through international cooperation. The establishment of international machinery for such punishment is essential."

Emphasis is mine.

To achieve this end of punishment, Lemkin proposed a framework as follows:


Proposal for an International Treaty,
including the following principles:
On the basis of the foregoing considerations, the author proposes that the United Nations as they are now organized, together with other invited nations, enter into an international treaty which would formulate genocide as an international crime, providing for its prevention and punishment in time of peace and war. This treaty, basically, should include, among other things, the following principles:

1. The crime of genocide should be recognized therein as a conspiracy to exterminate national, religious or racial groups. The overt acts of such a conspiracy may consist of attacks against life, liberty or property of members of such groups merely because of their affiliation with such groups. The formulation of the crime may be as follows: "Whoever, while participating in a conspiracy to destroy a national, racial or religious group, undertakes an attack against life, liberty or property of members of such groups is guilty of the crime of genocide."
​

At the time Lemkin wrote this piece, the United Nations was still in its infancy and still determined not to repeat the failure of its predecessor, the League of Nations. It is important to contextualise Lemkin's work historically - there was a degree of both optimism and determination with the UN, and the Second World War was still a raw wound for many. Assuming that an international organisation would be in a position to compel nations not to act in this way is not atypically naive and in fact very consistent of the early policymaker approach to the United Nations, even in the US.

Lemkin's labours resulted in the 1948 Convention for the Punishment of the Crime of Genocide - the international machinery had its gears, in other words. The document was not without compromise - Russia had insisted that, when groups were listed under Article 2, that political groups be excluded from being considered victims of genocide as they were busily exterminating their own political opponents. Consequently, when the Indonesians massacred Communists in the 1950s, they did so without the charge of genocide being applied because their actions were not a contravention of the Convention.

Britain and France, too, had their concerns with cultural groups being included. They felt that their own colonial past, which at this point was hearing rumblings of the nascent anti-colonial movement, would be troublesome in this context.

So it came to be that the world was introduced the crime of genocide under the Convention and it was defined as:

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:

1. Killing members of the group;
   
2. Causing serious bodily or mental harm to members of the group;
   
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
   
4. Imposing measures intended to prevent births within the group;
   
5. Forcibly transferring children of the group to another group.

For much of the period from 1948 to 2005 or so, genocide studies concentrated largely on:

1) Identifying the conditions under which genocide could happen,
2) Applying lessons learned from Point 1 above to trying to prevent it,
3) Expanding on concepts such as bystanderism - i.e. that the Germans who didn't prevent genocide are as culpable as the perpetrators
4) detailing responses to genocide at the time the Holocaust was happening.

Since 2005 or so, it seems the old guard of scholars, most of whom were Jewish, have retired or passed away and the new guard of scholars have begun to emerge. Not defined by their reaction to the second world war, they have begun increasingly to challenge the established view that the CPPCG is guiding standard for genocide studies. Note: this is one view in genocide academia, not the sole or majority view.

The contend, instead, that the Convention as a whole is flawed and compromised and a more robust approach is to instead look to Lemkins essays during the 1940s for the complete breadth and depth of what he intended as Genocide. Scholars, no matter their view on this, all acknowledge there is no study of genocide without Raphael Lemkin and he is considered the foremost expert on it. (Hint: if you want to define it, argue it, or even contemplate it, he's the man).

Since 1900, there have been a number of acts which scholars agree constitute genocide. This list includes the Armenian Genocide (also Assyrians and Greeks) in 1915; the Stolen Generation in Australia; the Bosnian conflict in the 1990s, the Rwanda "ethnic cleansing" of the 1990s...

However, only one act has been called genocide proper, the Holocaust. Turkey has used consistent political pressure to deny the Armenians their true claim. Russia denies the Serbs were guilty of any crimes (and in some instances were actually victims). The Australian Government has apologised to the Stolen Generation of forcibly removed children but refused to acknowledge its guilt as a genocidal state, to avoid reparations.

The term is, to understate the matter, charged and contested.

We are aware of the point of contention I have - and how some frankly ridiculously stupid accusations have arisen from it. Before we touch on that, I want to understand

a) what people define genocide as, and why,
b) what people think needs to be done when a genocide is identified, and
c) whether crimes against humanity, as defined by Article 7 of the Rome Statute, convey the same sense as genocide?

 

So my question is: having regard to the definition of genocide in article 2 of the convention, why wouldn't you consider what happened to native americans to fall within any of the categories of acts set out in items 1-5 in the definition?

 

No.

Largely because intent to destroy, in whole or in part, a national, racial or ethnic group cannot be demonstrated.

That events of mass killings occur with alarming frequency does not, in and of itself, give rise to intent. And since Article 2 is contingent on intent, deliberately to make genocide unique from mass killings, it makes a claim of genocide in the proper sense hard to apply.

If cultural groups had been included in Article 2, then I would argue the assimilation practices - designed to wipe out indigenous culture - would give rise to a clear intent to destroy, in whole or in part, a cultural group and therefore an act of genocide.

Right now, I would suggest Lost that under Article 7 of the Rome Statute the various acts of forced relocation, massacres, etc constitute a clear Crime Against Humanity.

 

what would it take to establish "intent to destroy in part an ethnic group" if military campaigns targeting civilian ethnic populations with intent to destroy them doesn't count?

 

Well lets look at the definition and break down its component parts and see where that takes us. It seems to me that the definition is very sloppy and vague such that the "intent" threshold is very low.

For example, the intent relates to the "destruction" in whole or in part of certain groups. Whilst the term"destroy" is not specifically defined, the acts which constitute such destruction are listed in the definition in items 1-5. The definition states that if "any" of those acts are committed in respect of a group "in whole or in part" with intent, then it is genocide.


So, can native americans be described as being a national, ethnic, racial or religious group? I think yes. Was there intent to kill native americans in whole or in part? I think yes. I mean, it doesn't appear that there must be intent to kill the entire group. The wording of the definition demands a much lower threshold. I just don't see how you can have a history of accidental massacres. The definition relates to acts not policy. So it seems to be arguable that to the extent that there is a deliberate act to kill part of a national, racial, ethnic or religious group then it is "genocide".

 

maybe he's hung up on a lot of the intent being an intent to remove native Americans from valuable real estate, with "destuction in part of an ethnic group" being merely a tactic to achieve the intent of removal.

 

That is how I read it as well.

 

Definitely religious and national.

 

Except no, they're actually linked pretty closely and issue becomes even if you try to adopt the spirit that Lemkin put forward you still run into a "so what" problem. Namely, ok, so you've called the treatment of natives a genocide... so what. Nobody will be punished. The crime is not recognised formally. Nobody is given reparations and formal, legal recognition of what was done to them. White people though, get to feel a little bit of guilt alleviated.

Which is why there's a fixation with applying "the strongest possible label" to the event/s, and a blindness and deafness to any reference to Lemkin or the Convention.

Um, I pretty clearly said the existence of massacres does not, in and of itself, give rise to a crime of genocide.
Let me give you examples of intent. The Final Solution is an obvious one, a malicious one. Let me give you a less obvious one.
The Crown, then Commonwealth of Australia, had decided the best thing for the aboriginal population of Australia was to civilise it by making it more like the "most civilised" people, British Europeans. It was for their own good; without such intervention, their savagery and un-Christian tendencies would forever harm them.
To protect them from themselves, the Commonwealth implemented a policy. Children would be taken from their parents, and put into white families. They would be married to white men, so that their children would only be half-Aborigine. Following on from this, their children would marry whites and therefore produce quarter-Aborigine children. Then great-grandchildren would only be 1/8th, then great-great grandchildren would be 1/16th, and so on and so forth.
The State put in place a policy to breed the Australian Aborigines out of of existence. This was happening in the 20th Century.
As Article 2(e) defines forcibly removing children as one of the means in which a state may attempt genocide; and as the Aboriginal population of Australia was a "racial or ethnic group", you have a genocide.
What happened in America was not the result of the State exhibiting an intent to destroy, in whole or in part, and ethnic or racial group. It was, I believe, inarguably attempting to exterminate in part the culture of these people, but as we've seen culture was excluded from the definition of Genocide. What in fact really hurts the American claim is that intent is central and that the Convention is framed in the context of a state backing the actions.
Where do you see intent, Jabba?

 

Another example springs to mind. It has been documented that in the late 1980s the Israeli Defence Force (IDF) used a type of tear gas in the occupied territories which caused pregrant women to miscarry. This tear gas was used specifically in Palestinian areas to supress the Intifada. There are accusations (and credible evidence) which indicates that the IDF was aware of the side effects and used it nonethless. There are documented instances of Palestinain women miscarrying after being exposed to this tear gas. Having regard to the definition in artivle 2 and specifically having regard to item 4, would this "act" not be an example of genocide? If not, why not?

 

This has actually been problematic, and your shared definition here means any act that would hitherto be called a massacre could be called a genocide. And it means that any act of killing people because, they're say, Jewish and you're a Palestinian freedom fighter, is genocide too.

The benchmark the International Tribunal hearing crimes in the former Yugoslavia set was "a reasonably significant number, relative to the total of the group as a whole":

7. As is evident from the Indictment, Krstić was not alleged to have intended to destroy the entire national group of Bosnian Muslims, but only a part of that group. The first question presented in this appeal is whether, in finding that Radislav Krstić had genocidal intent, the Trial Chamber defined the relevant part of the Bosnian Muslim group in a way which comports with the requirements of Article 4 and of the Genocide Convention.

8. It is well established that where a conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole. Although the Appeals Chamber has not yet addressed this issue, two Trial Chambers of this Tribunal have examined it. In Jelisić, the first case to confront the question, the Trial Chamber noted that, “[g]iven the goal of the [Genocide] Convention to deal with mass crimes, it is widely acknowledged that the intention to destroy must target at least a substantial part of the group.”The same conclusion was reached by the Sikirica Trial Chamber: “This part of the definition calls for evidence of an intention to destroy a substantial number relative to the total population of the group.”As these Trial Chambers explained, the substantiality requirement both captures genocide’s defining character as a crime of massive proportions and reflects the Convention’s concern with the impact the destruction of the targeted part will have on the overall survival of the group.

9. The question has also been considered by Trial Chambers of the ICTR, whose Statute contains an identical definition of the crime of genocide. These Chambers arrived at the same conclusion. In Kayishema, the Trial Chamber concluded, after having canvassed the authorities interpreting the Genocide Convention, that the term “‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group.” This definition was accepted and refined by the Trial Chambers in Bagilishema and Semanza, which stated that the intent to destroy must be, at least, an intent to destroy a substantial part of the group.. This interpretation is supported by scholarly opinion. The early commentators on the Genocide Convention emphasized that the term “in part” contains a substantiality requirement. Raphael Lemkin, a prominent international criminal lawyer who coined the term “genocide” and was instrumental in the drafting of the Genocide Convention, addressed the issue during the 1950 debate in the United States Senate on the ratification of the Convention. Lemkin explained that “the destruction in part must be of a substantial nature so as to affect the entirety.” He further suggested that the Senate clarify, in a statement of understanding to accompany the ratification, that “the Convention applies only to actions undertaken on a mass scale.” Another noted early commentator, Nehemiah Robinson, echoed this view, explaining that a perpetrator of genocide must possess the intent to destroy a substantial number of individuals constituting the targeted group.In discussing this requirement, Robinson stressed, as did Lemkin, that “the act must be directed toward the destruction of a group,” this formulation being the aim of the Convention."

Taking the Tribunal's findings, and Lemkin's own views, into consider it would be difficult to agree with either of you there Iello/Lost.

EDIT: Lost, this might address your point about the IDF too and why yours/Jello's approach would have almost everything labelled genocide, contrary to Lemkin's intent.

 

Ender, this is still happening TODAY...


Nearly 700 Native American children in South Dakota are being removed from their homes every year, sometimes under questionable circumstances. An NPR News investigation has found that the state is largely failing to place them according to the law. The vast majority of native kids in foster care in South Dakota are in nonnative homes or group homes, according to an NPR analysis of state records.

State officials say they have to do what's in the best interest of the child, but the state does have a financial incentive to remove the children. The state receives thousands of dollars from the federal government for every child it takes from a family, and in some cases the state gets even more money if the child is Native American. The result is that South Dakota is now removing children at a rate higher than the vast majority of other states in the country.


Native American families feel the brunt of this. Their children make up less than 15 percent of the child population, yet they make up more than half of the children in foster care.


http://www.npr.org/2011/10/25/141672992/native-foster-care-lost-children-shattered-families

 

Harps, is the intent there to breed out their aboriginality?

Forcibly removing children is not, in and of itself, an act of genocide. It must be accompanied by an intent to destroy the group (national, racial, ethnic etc) in doing so.

Australia's case is genocide because the intent was to breed the race out of existence by mandating that they couldn't marry other stolen generation aborigines.

Officials said things like "Generally by the fifth and invariably by the sixth generation, all native characteristics of the Australian Aborigine are eradicated. The problem of our half-castes will quickly be eliminated by the complete disappearance of the black race, and the swift submergence of their progeny in the white" and "One factor, however, seems clear; atavism is not in evidence so far as colour is concerned. Eliminate in future the full-blood and the white and one common blend will remain. Eliminate the full blood and permit the white admixture and eventually the race will become white."

These comments, in justification of the process of removing children, are what get you genocide. What is happening in that article is deplorable, questionable, a possible crime against humanity (http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf) but I don't think it's the same as the stolen generation?

 

Years ago, thousands of Native American children were forcibly removed from their homes and sent to boarding schools, where the motto of the schools' founder was "Kill the Indian, Save the Man."

 

This doesn't invalidate my point. It's entered the lexicon. It's fine for Ender to police the term when it's being used flippantly. What's not fine is for his reasoning to be "it's only legal word." Because that's false. It's not only a legal word.

Also really Jello everything is an invented term.

If you can point to where I'm saying it's okay for it to be used until trivialization, that'd be great. Because no one here is making that argument. At all.

 

Ender, whether it was an intent to remove Native Americans from their real estate or an intent to destroy the culture, the tactic used was to destroy in part an ethnic group through, for example, military campaigns. Knowingly with intent destroying in part an ethnic group by means of:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

...in order to destroy a culture... Destroying a culture by killing the members of its ethnic group is intent to destroy an ethnic group in part.

 

It was Genocide.

 

Yes, I've addressed this several times. The instances of brutally punishing children for reverting to their native tongues and cultural practices as they were basically indoctrinated into a "European/Civilised" mindset would unquestionably constitute the crime if Lemkin's original definition, which included culture, was included.

Quoting from the paper from Dr Adam Muller, which I've previously sent to Jello:

"The centrality of the destruction of culture to Lemkin’s original formulation of the genocide concept cannot be denied. For Lemkin, genocide was a crime centering on a group’s destruction, an idea retained in Article Two of the Genocide Convention, which defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” According to Peter Balakian, who has recently published work arising from research into hitherto unknown documents contained in Lemkin’s archive, Lemkin understood groups to be sustained by three main attributes or capacities: the physical existence of their members; their ability to remain biologically reproductive (i.e. their wherewithal to produce new members of the group, and thus to renew themselves); and their capacity for “spiritual” or cultural expression. According to Lemkin, genocide occurs when one or all three of these capacities is destroyed, rendering a group unable to persist and its members unable to recognize one another as the same kinds of beings-in-the-world. Balakian argues that “Lemkin focuses on how the destruction of religious institutions and objects, for example, eliminates the ‘spiritual life’ through which a human group finds defining expression; when a group’s culture (schools, treasures of art and culture, houses of worship, and the like) is destroyed, he argues, ‘the forces of spiritual cohesion’ are torn apart and the group ‘starts to disintegrate.”

Peter Balakian, “Raphael Lemkin, Cultural Destruction, and the Armenian Genocide,” Holocaust and Genocide Studies 27.1 (2013): 57-81. 60."

The problem, though, is that UN member states had the definition truncated for a variety of reasons (not all malicious) and cultural groups were excluded from Article 2.

I would go back to Lemkin here though, as quoted above: "The significant feature of international crime is a recognition that because of its international importance it must be punished and punishable through international cooperation. The establishment of international machinery for such punishment is essential"

Where I fall on all this is - I agree completely it must be a punishable offence, otherwise it's meaningless. Which means if it's not in Article 2, it's not the crime, because you if you can't punish it why label it?

This of course is completely undone by renowned deep thinker and political doyenne Lord Vivec, who has decided that all scholarly opinion on the point is moot because <lazy handwave something something, back behind the virtual maternal skirt from whence he came>.