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THE BITTER FIGHT OVER THE MEANING OF ‘GENOCIDE’  
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Linda Kinstler
August 20, 2024
New York Times
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_ Debates over how to describe conflicts in Gaza, Myanmar and
elsewhere are channeling a controversy as old as the word itself. The
Genocide Convention emerged as an immediate response to World War
II-today its being renegotiated to bring it up to date _

Illustration by Pablo Delcan / New York Times,

 

On Feb. 26, 2007, Smail Čekić stormed out of the Peace Palace, the
seat of the International Court of Justice, carrying the decision the
judges had just handed down. The case that concluded that day, Bosnia
v. Serbia, was to determine whether Serbia had violated the Genocide
Convention during the Bosnian War, when Bosnian Serb forces killed an
estimated 100,000 civilians. Čekić, then the director of Sarajevo
University’s Institute for Research of Crimes Against Humanity and
International Law and a Bosnian victim of the war, had hoped the
court, which is based in The Hague, would punish his compatriots’
deaths and acknowledge them as victims of genocide. Instead, the court
declined to classify a vast majority of the Bosnian deaths as
genocidal. For Čekić and other survivors, the ruling was a betrayal:
They felt that the court had refused to recognize the true nature of
the violence. Newspapers reported that Serbia had been found not
guilty of genocide;
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celebration was planned at the Serbian Embassy. Standing outside the
I.C.J., the top court of the United Nations, Čekić tore the text of
the judgment to pieces.

That day, the court ruled that over the course of the war, Serbia
committed genocide only in one instance. During the 1995 Srebrenica
massacre, Bosnian Serb fighters took roughly 8,000 Bosnian Muslim men
and boys to predetermined sites before killing them and throwing their
bodies into mass graves. In a vast landscape of murder that, as the
judges acknowledged, included horrors like the systematic torture,
rape and beatings of Bosnians in detention camps and the expulsion of
thousands of non-Serbs, this_ _episode alone appeared sufficiently
genocidal to the judges. Only there did the perpetrators explicitly
display the _dolus specialis_, or specific intent, “to destroy, in
whole or in part, the group as such” required for a killing to be
considered an instance of genocide. Killings elsewhere in Bosnia may
have been war crimes or crimes against humanity — acts that were
equally grave — but the decision argued that wherever there were any
other plausible reasons for why the killings took place, the court
could not rule that genocide definitively occurred. In a dissenting
opinion, Judge Awn Shawkat Al-Khasawneh of Jordan chastised his
colleagues for failing to appreciate the “definitional complexity”
of genocide by interpreting the intent requirement so narrowly.

Marko Milanović, now a scholar of international law, was working as a
clerk at the I.C.J. that day in 2007. He watched on TV as Čekić tore
up the verdict in anger. For him, the episode heralded a rupture that
by then was already underway. The moral force of the word
“genocide” and the public understanding of the word had become
fully detached from its relatively narrow legal meaning. Ever since
the Polish lawyer Raphael Lemkin coined the word in 1944, by combining
the Greek word _genos_, meaning “race or tribe,” with the
Latin _cide, _or “killing,” it has been pulled taut between
languages — Greek and Latin, legal and moral.

In his book from that year, “Axis Rule in Occupied Europe,” Lemkin
explains that he saw the word as describing “an old practice in its
modern development.” In his view, genocide encompassed a broad array
of crimes committed with the intent to destroy a national, religious,
racial or ethnic group. A secular Jew who believed that every people
carried its own distinct spirit, Lemkin argued that genocide included
acts not just of physical obliteration but also of cultural
annihilation. For him, the word described any attempt to stamp out a
people’s essence from the earth. It included mass killings as well
as actions to eliminate the “essential foundations of the life of
national groups”: the destruction of language, traditions,
monuments, artworks, archives, libraries, universities and places of
worship. Lemkin’s hope was that coining the word, and persuading
nations to recognize it as a crime, might somehow prevent it from
recurring. He wanted his neologism to convert what Winston Churchill
once called a “crime without a name” into an identifiable, obvious
and abhorrent thing.

But by the time the United Nations approved the Genocide Convention on
Dec. 9, 1948, making genocide a crime under international law, only a
shadow of Lemkin’s original idea survived. After years of
contentious deliberation and diplomatic negotiation, the convention
limited genocide to five categories of acts: killing members of a
group; causing group members serious bodily or mental harm; imposing
measures intended to prevent births within the group; forcibly
transferring children from one group to another; and “deliberately
inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part.” Each one of these
acts could constitute genocide only if and when committed with the
specific intent to destroy a protected group. All state parties agreed
to prevent and punish any instance of this crime.

The convention was a momentous achievement, but it essentially “sat
on a shelf” for 50 years before it was ever used in court, the
international legal scholar Leila Sadat told me. Untested, the
potential applications of the convention remained undeveloped. Today
conflicts around the globe, including Israel’s war in the Gaza
Strip, Russia’s war in Ukraine and the persecution of Myanmar’s
Rohingya Muslim minority, are forcing a reappraisal of genocide’s
legal definition. Dozens of states are now directly or indirectly
involved in one of four genocide cases pending before the I.C.J. The
most closely watched of these cases, and also the most controversial,
are two pertaining to the war in Gaza: The first case, brought
by South Africa, accuses Israel of violating the Genocide Convention
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its indiscriminate attacks on Palestinian civilians. The second case,
brought by Nicaragua, accuses Germany of complicity in genocide
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of its continued export of arms to Israel.

Final decisions in the suits are not expected for several years, but
they’ve already altered an ongoing debate about whether the
definition of genocide ought to be updated for the 21st century. For
nearly 80 years, the word has been indelibly associated with the
Holocaust. To invoke “genocide” is to immediately conjure up the
memory of the destruction of the Jewish people and its associated
architecture of murder: concentration camps and deportation trains,
ghettos and gas chambers. This relation has at once augmented
genocide’s moral force and undermined its legal uses. The Holocaust
is viewed both as the awful standard against which all modern
atrocities must be measured and as a supposedly unrepeatable
catastrophe to which they must never be compared. The Genocide
Convention effectively enshrined this paradoxical understanding of the
Shoah and established a nearly impossible bar for genocidal intent
based on its example. As a result, international courts have rarely
recognized more recent mass killings as instances of the crime, and
peoples seeking to have their suffering recognized as such have been
bitterly disappointed. The suits brought by South Africa and Nicaragua
aim to challenge this state of affairs and make the Genocide
Convention the tool for prevention and protection that Lemkin wanted
it to be.

WHEN THE UNITED NATIONS passed the Genocide Convention, Lemkin did
not celebrate. It represented the triumph of many thankless years of
work, but Lemkin was nowhere to be found. The Times reporter A.M.
Rosenthal
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him weeping inside the darkened assembly hall. A few days later,
Lemkin was hospitalized for exhaustion, a condition he mordantly
called “genociditis.” This anecdote is sometimes told as a story
of how his long-fought victory overwhelmed him; it can also be read as
evidence of just how profoundly the world had, by then, let him down.
 
Raphael Lemkin, a Polish lawyer, coined the word “genocide” in
1944 and hoped that persuading nations to recognize it as a crime
might somehow prevent it from recurring.  (Credit: Bettmann  //
 New York Times)
Lemkin lost at least 49 members of his family in the Holocaust. He
only narrowly escaped the same fate himself. Witnessing the systematic
mass murder of European Jews sharpened his desire to codify a law
against genocide, but his obsession with the legal problem that it
presented predated World War II. As a young boy in Poland, he
witnessed pogroms of the Jewish population, an experience that ignited
his interest in cases of mass slaughter. Later, he read accounts of
the Armenian genocide and wondered how it could be easier to punish
someone for killing a single individual than to hold a state
accountable for murdering millions. After escaping the Nazis, he was a
presence in the halls of the Palace of Justice at Nuremberg, where he
tried and failed to get the Allied judges to include the crime of
genocide in their final judgment.

Lemkin nurtured an almost-fanatical belief in law’s capacity to
alleviate humanity’s worst afflictions. He knew that many people
regarded him as a “pest” and that he was always at risk of wearing
out his welcome wherever he appeared. Sometimes the seeming
impossibility of his self-appointed task wore him down. “There were
many days when he sat slumped in the cafeteria over a cup of coffee,
barely able to lift it for the weariness in him and the rebuff,”
Rosenthal_ _wrote._ _He spent the last decade of his life traveling
to diplomatic capitals, living off borrowed funds and haranguing
United Nations delegates who eventually whittled down his expansive
theory of genocide. The Soviets, fearing they could be held
accountable for their own domestic mass killings, objected to the
protection of political groups under the convention. The Americans
worried about language that could be used to interpret a history of
lynching and Jim Crow laws as a form of genocide. Major powers
compromised in favor of a definition that was both narrow and opaque.
By codifying genocide this way, the convention paradoxically made it
far more difficult to identify and prove, amplifying the concept’s
rhetorical power while leaving it to the courts to determine how it
would be applied.

Not long after it was adopted, genocide allegations began to flood
diplomatic channels. In 1951, the American Civil Rights Congress
presented a paper titled “We Charge Genocide” to the United
Nations, arguing that the United States was indeed guilty of genocidal
actions against African Americans. (In a letter to The Times, Lemkin
strongly rejected
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logic of this claim.) Arab nations argued that French colonial
massacres in Algeria had been instances of genocidal violence. African
nations argued that South Africa’s apartheid policies amounted to a
genocide of its Black population and that Portugal had committed
genocide in its colonial territories. After Israel captured and
occupied the Gaza Strip and other territories during the Arab-Israeli
War of 1967, neighboring states increasingly accused it of genocide
against the Palestinian people. None of these allegations were
converted into formal proceedings. For decades to come, the
jurisprudence of genocide remained conspicuously silent, while
philosophical and colloquial uses of the word accumulated moral and
political force.

Lemkin died penniless and alone in 1959 and was buried in a modest
plot in Queens. It was only in the 1990s that the convention was
actually used in court, and even then the memory of the Holocaust
limited its application. In 1994, the United Nations established the
International Criminal Tribunal for Rwanda in order to try Rwandan
officials on charges of genocide, which eventually resulted in
convictions. (Until the International Criminal Court, or I.C.C., began
operating in 2003, special tribunals — bespoke judicial outfits
created to prosecute a specific group of perpetrators — were the
only means by which individual offenders could be held accountable by
international bodies.) “In the Rwanda tribunal, genocide was never
really in question there,” the legal scholar William Schabas told
me. “It was just obvious.” The manner of the killing — one
ethnic group deliberately and systematically slaughtering another —
closely resembled Nazi Germany’s genocidal campaign.

After Rwanda came the first wave of international genocide cases, each
of which exposed the convention’s limitations. A similar tribunal,
the International Criminal Tribunal for the Former Yugoslavia, tried
individual perpetrators of the Yugoslav wars. Struggling to classify
the wars’ disparate and varied killings, it fell back on a strict
interpretation of the Genocide Convention, finding that only in
Srebrenica was genocidal intent the only possible motivation for the
murders — an interpretation that the I.C.J. later emulated in its
separate consideration of Serbian state responsibility. The resulting
ruling in the Bosnia v. Serbia_ _case marked at once the beginning of
genocide litigation at the I.C.J. and, for many years, its functional
end.

The strict legal interpretation of genocide has meant that courts
might never recognize many of the worst atrocities of the past several
decades as genocide. These include but are not limited to the killing
of some 300,000 people in the Darfur region of Sudan
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million during the Nigeria-Biafra war
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government’s mass deportation and killing of an estimated 100,000
Kurds
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the late 1980s and the Yazidi massacres by ISIS
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2014. If Lemkin were alive today, he would most likely recognize
the Chinese effort
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indefinitely detain, re-educate, imprison and torture Uyghurs, and to
destroy their mosques, confiscate their literature and ban their
language in schools, as precisely the kind of cultural and physical
genocide that he hoped his convention would eliminate. While China is
a party to the Genocide Convention, it has refused — like the United
States, France and Russia — to recognize the jurisdiction of the
I.C.J., shielding itself from the court’s authority.

The many catastrophes that have been publicly, but not legally,
recognized as genocide underscore the outsize influence of the
I.C.J.’s 2007 Bosnia v. Serbia decision._ _That case marks the only
instance in the court’s 79-year existence in which its judges have
determined that genocide definitively occurred, as well as the only
time the court has ruled that a state actively failed to prevent the
crime from unfolding. The ruling established several critical elements
about the law of genocide, including that states are obligated to
prevent genocide even outside their own borders and that isolated
instances of genocide can occur amid a broader field of crimes against
humanity.

 
A Bosnian Muslim woman searching coffins in Potocari, near
Srebrenica, in 2011. The Bosnian Serb army killed an estimated 100,000
civilians during the Bosnian War of 1992-95; the International Court
of Justice declined to classify most of these deaths as genocidal.
 (Credit: Dado Ruvic/Reuters  //  New York Times)
Yet in its remarkable parsimony, the 2007 ruling also reinforced the
status of “genocide” as a somewhat inscrutable and unimaginable
crime, underscoring the gravity of the offense while establishing such
a high bar for genocidal intent that it would become virtually
impossible to hold states responsible. It effectively meant that
unthinkable atrocities could fail to satisfy the convention’s
requirements if they were not accompanied by an overt statement of
intent to wipe out an entire people, such as the written plan for a
“final solution” that the Nazis adopted at the 1942 Wannsee
Conference. “It was the nail in the coffin of the Genocide
Convention,” Sadat says of the Bosnia_ _decision. In her view, the
ruling converted the Genocide Convention from an active mechanism for
preventing and punishing the elimination of entire peoples into a
memorial to the Holocaust and the world’s failure to prevent it from
unfolding. Events in Srebrenica and Rwanda were deemed genocidal in
part because they resembled episodes from the Holocaust in form and
process. Instances that did not fit this neatly macabre protocol could
not be deemed genocidal beyond a reasonable doubt.

Scholars point to the response to the Khmer Rouge slaughter of an
estimated two million Cambodians as a telling case of how the
convention failed. The tribunal examining the crimes found that a vast
majority of the killings did not legally qualify as genocide, because
they were mostly of intellectuals and political opponents, not ethnic
or religious groups. In the 16 years before it disbanded in 2022,
the tribunal convicted only two individuals of genocide,
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those convictions applied only to the killing of minorities. “This
very strict interpretation of genocide does a disservice to those like
Lemkin who really fought for this treaty,” Sadat says. Alex Hinton,
a genocide scholar, says that “ultimately, by not punishing certain
sorts of crimes,” the convention “leaves a big hole in the legal
architecture for preventing mass human rights violations.”

For Milanovic, the 2007 Bosnia decision augurs how the I.C.J. will
probably rule in the two cases it is currently considering regarding
Israel’s ongoing war in Gaza. While the I.C.J. is not strictly bound
to follow its own precedent, whatever judgments are eventually handed
down are almost certain to build on that decision’s example and to
disappoint those who might look to the court as a source of emotional
recognition and moral authority. On April 30, the I.C.J. issued an
initial order in the Nicaragua v. Germany_ _case. While the court was
“deeply concerned about the catastrophic living conditions of the
Palestinians in the Gaza Strip,” it declined to order provisional
measures in the case. Instead, it merely reminded all states of their
obligation “to ensure respect” of rules governing the conduct of
war and said that Germany (the largest supplier of weapons to Israel
other than the United States) was obliged to use “all means
reasonably available” to prevent the commission of genocide.

 
The lawyers John Dugard (left), Tembeka Ngcukaitobi and Adila Hassim
at the International Court of Justice in The Hague before a January
2024 hearing in the genocide case against Israel brought by South
Africa.  (Credit: Hollandse Hoogte/Shutterstoc  //  New York Times)

In the only dissenting opinion [[link removed]],
Al-Khasawneh, who is serving as an ad hoc judge in the case, pointed
out that Germany sent 3,000 anti-tank weapons to Israel after Oct. 7.
“Anyone familiar with their use in civil wars would know or ought to
know that, especially when employed against an enemy which does not
have tanks, as is the case in Gaza, they are used to target homes and
other buildings with the devastating effect of penetrating the
building and indiscriminately incinerating everyone inside,” he
wrote. By declining to take further action, the court betrayed the
preventive function of the Genocide Convention. Not only was Germany
surely aware of a possible genocide in the making in Gaza, he argued,
but there was also an imminent risk that the possibility would soon
become a reality: “There are none so blind as those who will not
see.”

THE ONGOING DEBATE over whether “genocide” describes the current
Israeli violence in Gaza has become an occasion for politicians,
scholars, activists and lawyers to reappraise the legal architecture
— and the history — that we have all inherited and to begin to
rethink how moral responsibility for the worst categories of crimes
ought to be assigned. Over the past several months, as the I.C.J. has
begun to weigh the two cases pertaining to Israel and Gaza, protesters
around the world have offered their own judgments in advance. “Stop
the Genocide,” their posters have proclaimed. “Let Gaza Live.”
They have urged universities to divest from Israel’s arms suppliers
and have called for a cease-fire, among other measures. Their signs
and demands have sought to mobilize the rhetorical force that
“genocide” has accrued.

They have many potential instances of the crime to point to. In
December, President Biden rebuked Israel
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its “indiscriminate bombing” of Gaza. Israeli attacks with the
stated goals of targeting Hamas commanders or freeing hostages have
resulted in tens of thousands of civilian casualties, deaths that are
grouped under the military acronym “CIVCAS.”_ _Half a
million Gazans are facing catastrophic levels of starvation
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earlier this month, the Israeli finance minister, Bezalel Smotrich,
suggested that allowing the entire Gazan population to die of hunger
might be “justified and moral.” Palestinian communities in the
West Bank have been forcibly removed from their lands
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and entire swathes of Gaza have been emptied and flattened — actions
that are intended, the protesters would argue, to bring about (in the
convention’s language) “conditions of life” that would result in
the “physical destruction” of the Palestinian community there. But
Israel argues that the continued presence of Hamas — a violent
organization that aims to “obliterate” Israel — in Gaza
necessitates such military action. This means that if the strict
interpretation of the Genocide Convention prevails at the I.C.J., it
is possible that none of these actions will meet the legal definition
of the crime.

But the protests underscored that the story will not end there. Just
as previous generations levied claims of “genocide” to expose
racial injustice, colonial violence and ethnic cleansing around the
world, today’s activists are grasping for language with which to
describe the violence that they see unfolding. The word
“genocide,” the international-affairs scholar Zachariah Mampilly
says, is not meant to be precise. “It’s meant to serve a
political, moral purpose, not to be a technical legal term,” he
argues, and protesting students are recruiting this quality to their
cause. The genocide scholar A. Dirk Moses puts it even more
stridently. “The broader view of genocide is the more accurate
one,” he says. “The law is designed to allow states to hide, but
ordinary people are not fooled.”

Law is designed to move slowly, its gaze fixed firmly upon the past
rather than the future. “Laws as they emerge are always fighting the
previous war,” the legal scholar Sarah Nouwen told me. The Genocide
Convention emerged as an immediate response to World War II; today its
terms are being renegotiated in real time as part of an effort to
bring them up to date with the last 80 years of war. One likely effect
of all this activity is that the court will relax its evidentiary
requirements for proving genocidal intent. Last November, several
nations, including Canada, Germany and Britain, filed a joint
submission in the Myanmar_ _case arguing that the court should do
precisely that, taking into account factors like the victimization of
children, the commission of gender-based violence and the forced
displacement of the Rohingya people as circumstantial evidence of
genocide. Loosening the legal interpretation of the special-intent
requirement, Schabas argues, would “thereby make the convention a
living instrument that can be applied.”

There is also momentum building behind a new convention
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would patch the loophole that the Genocide Convention exposed. Ever
since the 2007 Bosnia ruling, a group of legal scholars led by Sadat
has been working to advance a proposed crimes-against-humanity
convention that would create a mechanism for states to bring actions
against other nations for perpetrating such crimes. This proposed
convention aims to rebalance the hierarchy of violence that has
elevated genocide above all other violations. It could help end the
regime of impunity that has allowed states to get away with acts of
mass killing for far too long.

In 2019, the United Nations International Law Commission submitted its
own draft convention inspired by Sadat’s proposal. In early April,
the U.N. Sixth Committee, which considers legal questions, held a
series of hearings on the draft. This October, the committee will meet
to decide whether the proposed convention should move forward into the
formal negotiation phase. “The crimes-against-humanity convention
will fill a legal gap that will provide a pathway for justice for
those who are excluded from the Genocide Convention,” the
international human rights advocate Kate Ferguson told me in the
U.N.’s basement cafe. The new convention aims to carry forward
Lemkin’s legacy and provide a sorely needed mechanism for innocent
people to be protected from slaughter — or, at the very least, to
seek legal recourse for their suffering.

Lemkin crafted the word “genocide” in an attempt to close the gap
between our moral imagination and the constraints of our legal
systems. His unflagging belief in the power of law ushered the
Genocide Convention into being, yet it also produced its own set of
intractable dilemmas. “He encouraged journalists to think of him as
a total idealist, which made it easier to screen out harder questions
about politics and law,” the historian James Loeffler told me.
Lemkin created an important pathway for accountability, but in
restricting his pursuit of justice to the courts, he largely avoided
questions about how political power can hinder just outcomes. Today we
have another chance to grapple with that problem.

“What does justice look like for Palestine? What does justice look
like for Israel? We haven’t really gotten to the point of thinking
through what that would mean,” Loeffler says. “As the gap grows
between those who are genuinely anguished by the violence they see
unfolding, and this arcane maneuvering to lumber toward legal clarity
— that can challenge the whole system.” The time for evading those
hard questions ran out long ago. For Palestinians, Israelis,
Ukrainians, Rohingya, Sudanese and so many others, no judicial
decision can change the fact of destruction or undo the sheer volume
of loss. Yet out of the debate over what “genocide” means in the
courts and in the streets, a renewed sense of moral clarity may soon
come.

_[LINDA KINSTLER is a junior fellow at Harvard’s Society of Fellows
and the author of “Come to This Court and Cry: How the Holocaust
Ends
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She has written extensively about legal history and the politics of
memory.]_

* Genocide
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* Genocide Convention
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* war crimes
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* crimes against humanity
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* Israel-Gaza War
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* Israel
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* Gaza
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* Palestine
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* Israel-Palestine
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* Myanmar
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* Serbia
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* Rwanda
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* Cambodia
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* Khmer Rouge
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* ICJ
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* International Court of Justice
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* Holocaust
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* The Holocaust
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* Raphael Lemkin
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* Benjamin Netanyahu
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* Bosnia
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* Bosnians
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* Srebrenica
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* United Nations
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