No, No It Can’t

Nick Thompson, writing at Wired Magazine‘s Danger Room blog, asks “Can Russia Actually, Legitimately, Really Claim ‘Genocide’?” No, it can’t, and not just because pots and kettles have been calling each other out in the Caucasus. But the various reasons that Thompson suggests might allow such a claim – “under the fuzzy international law of genocide, the country might have a
case—if only because almost anyone, in any conflict, has a case” – are a bit off the mark. I’ll leave it to Charli and the Swineherds (sounds like a great roadhouse band…) to sift through the facts of the case, chime in on the distinctions between war crimes, crimes against humanity, and genocide, and relate jus ad bellum and jus in bello to all three. My points are on the role of  perception in his argument.

The UN Convention on the Prevention and Punishment of the Crime of Genocide was considered “fuzzy” in the early 1990s, primarily because it hadn’t been tested in court since becoming a reality in 1948. More to the point, it might be considered “fuzzy” because when the parties were negotiating its content, two of the big players, Russia and China, ensured that “political groups” were eliminated from consideration in what was a seriously wrongheaded approach: dictating the character of the crime by virtue of the identity of its victim(s), as defined in some putatively objective measure of group identity – rather than as a function of perpetrator perceptions of target group identity. Big difference, and integral to perpetrator intent.

Victim group identity and composition is the point, but too easily misunderstood or misrepresented. They and the historical/sociological implications of identity-based slaughter have also been much debated in genocide scholarship.  Probably the most useful approach that I’ve read is Williams Schabas’ legal explanation that the four identity groups at the core of the UNGC – religious, racial, ethnical [sic], and national – are not meant to be static, literal categories, but rather four pillars from which various permutations of identity can be inferred. Which means it’s down to the ability of the lawyers and analysts to use their gray cells to interpret these things intelligently. 

Finally, it might be considered “fuzzy” because it doesn’t sufficiently distinguish between genocide as event and genocide as process. Frank Chalk and Kurt Jonassohn, among others (Helen Fein, Robert Melson), note that genocide, right across the historical spectrum, involves longer term dynamics and stages. They, Leo Kuper before them, and others such as (notably) Gerard Chaliand, have also observed the role of “genocidal massacres”, more limited in time and place, of which said processes may be constituted. 

Schabas clarifies all of this by explaining that genocide in international law is an “inchoate” crime – not a single thing that happens in an instant, but a phenomenon defined by its accumulation of contributing events. That, of course, requires a test of means and quantitative thresholds, which is important – though the scholarship can be downright silly and distracting (if you really want to explore that end of genocide scholarship, feel free to go read what Israel Charny once wrote on planeticide in the scale of genocidal killing).

Thompson conflates war crimes, crimes against humanity, and genocide, but he rightly notes, without expressing it in so many words, the complexity of the Convention, it’s mixing of lethal and non-lethal measures, and confusion over what group destruction actually means in gecocidal context. He also goes slightly astray again when he writes “The law may be broad, but when we think genocide, we think of the
Holocaust or of Rwanda. And it would debase the word to use it to
describe the killings in South Ossetia, or even the horrible
destruction in Burma’s Karen State.”

In some quarters, the argument used to be (and still is) that the Holocaust was unique, and that to apply the term genocide to any other case would dilute its meaning and the memory of the victims. That’s a moral argument, not a legal one. It also holds much less water than it used to; there are now reams of effectively argued scholarship that apply social science methodologies and legal criteria to a multitude of cases of varying types. The lesson here is that there isn’t one archetypal genocide, but several, right across the 20th century, to include Cambodia in the late 1970s and Rwanda in 1994.

The real fuzziness is stupid public statements and political rhetoric meant to remind us of unlike cases of a decade ago. The real fuzziness comes from trying to bridge that rhetoric to the responses to those cases.

4 comments

  1. Charli Carpenter

    Nicely done, Mike. Based on my reading of events, there is no way that either side has a valid claim of "genocide." The crux of the crime is not, as you explain, so much the question of what identity group is being targeted: it’s whether the perpetrators intend to destroy that group as such. In other words, genocide is a crime against a group, not individuals. On the one hand, what we have here is a very limited amount of damage (I’m speaking in relative terms of course): Human Rights Watch has only confirmed some 44 civilian dead. It’s not even clear as yet how many of those were targeted directly, as opposed to being victims of tragic but legal "double effect." But even if (say) 30,000 civilians were dead, it wouldn’t be genocide unless the purpose of the deaths was to wipe out the group "as such." Widescale slaughter of civilians without the intent to destroy the group is a crime against humanity, but not genocide.

  2. Mike Innes

    Right. I agree with you on the 30,000, but you seem to be suggesting that the 44, as a low threshold of dead civilians, also disqualifies a claim of genocide. The emphasis on scale isn’t without merit, in that the physical extent of the crime can help us infer the criminal intent of the perpetrator. But it’s also a generally untested area of genocide scholarship.Schabas actually makes some interesting and solid points about the role of quantitative thresholds in determinations of genocide… I don’t think the argument has been sufficiently made at either end of the quantitative spectrum. As a hypothetical, can the killing of a single individual constitute genocide? The intuitive response is "of course not". But why not? Simply because the case has yet to be put forth and argued, and so we’re stuck with the perceptions that accrue from a few archetypal cases. Conceivably, if the intentionality behind the killing of many can be identified as genocidal, then so too can the killing of one, given the right conditions.

  3. Diodotus

    I don’t think the concept of genocide is that fuzzy and it’s certainly not "broad" as Thompson claims: it’s incredibly narrow and precise. It excludes most mass killing (only national, ethnic, racial or religious groups count); it excludes any crimes that can’t be shown to intend to destroy a group, as Charli points out. The fuzziness that seems to trip people up is the part you allude to in your comment above: what does it mean to intend to destroy a group "in part"? (because you don’t have to intend to destroy the whole group…)

  4. Mike Innes

    Actually, the UNGC understands genocide to intend group destruction in toto, through disruption of a sufficient part of it ("in part") such that the remainder ceases to function.

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