#Ge·no·zid·blogger e.V.
13 Nov 2016

Text: Corinna / Translation: Miriam & Daniel

#Criticism of the definition of genocide

Ever since the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG)’s ratification, the UN’s definition of it as legal precedent has been met with a substantial amount of criticism due mostly to the restrictive way in which the victim groups are defined. You can find the article about the genocide definition here.

Foto: Thomas Matthias

#Victim Groups

Pursuant to the CPPCG, the following 4 groups are deemed to be in need of protection:

# National Groups

# Ethnic Groups

# Racial Groups

# Religious Groups

These 4 ‘protected’ groups are hard to define, particularly in the case of ethnicity and race, both of which consist not of objective characteristics, but of a social construct. One group’s characteristics are always distinct from those of another group. They are therefore not invariable.[1]

By definition the murder of social, cultural and political groups is not, as per the Convention, a crime. Due to heavy insistence from the Soviet bloc, with support from Poland, Yugoslavia and Iran, the prosecution of political groups was omitted from the CPPCG. Pleas for these groups to be included in the CPPCG were ignored by the USA, when the Soviet Union agreed to the establishment of an International Criminal Court. This later turned out to be a lapse in judgement.[2] It was because of this that events such as the murder of millions of people under Stalin and in Cambodia did not, legally speaking, fall under the category of crimes of genocide.[3]

It is worth noting that, behind every genocide lies a political motive. Politically motivated acts of terrorism against one of the 4 groups mentioned earlier are deemed to be acts of genocide. It is nevertheless only considered to be ‘political mass murder’ when these acts are carried out against political opponents. As such, there is an unorthodox debate between the literature and practice as to whether mass murder can henceforth be deemed as a legal form of genocide.[4]

However, it is not so easy to add political groups to the Convention after-the-fact – as not all political groups are in equal need of protection. The National Socialist Sturmabteilung, the SS, Hezbollah, Khmer Rouge and terrorist organisations such as the Taliban, Al-Qaeda, the so-called Islamic State, and the Red Army Faction (RAF) would for example all fall under the political group category – despite being in no way worthy or in need of protection. And so, a debate on which political groups should be allowed into the protection of the CPPCG, and which should not, comes to the fore. Regrettably, this debate does not solve the problem at hand but is instead merely a deflection.[5]

Foto: Thomas Matthias

#Intent

The CPPCG states that, for an act to be deemed a genocide, it must have an explicit intent or a motive that can be proven. According to Weitz, this intent differentiates between civilian casualties and the genocide of a group in times of war. For example, the dropping of atomic bombs on Hiroshima and Nagasaki was not an act of genocide, as the USA’s intent was military victory against Japan and not the complete destruction of the Japanese people.[6]

It is, however, very difficult in practice to discern the intent of these acts as it is highly unlikely that any evidence of the official authorisation of mass murder exists.[7] The perpetrator’s state of mind (read: the perpetrator ‘s comprehension of the consequences of his/her actions) dictates whether their criminal act is deemed as a violation of the CPPCG. The question arises then if groups – and States for that matter – possess one state of mind in the eyes of criminal law.

In literature and case law it is argued that the intent to completely or partially destroy a group is, pursuant to Article II of the CPPCG, a dolus specialis (a harm resulting from an act specifically intended to cause that harm) and therefore sets genocide apart from other crimes.[8] A somewhat broader interpretation is, for example, similar to that of the International Criminal Tribunal for Rwanda (ICTR). This stance argues that a perpetrator is responsible for their actions, as he or she knew or must have known of the likelihood that their actions would lead to the destruction of the victim group. In this instance, it is also important to distinguish between the motive (personal, political or economic gain) and the intent (carrying out the act with the intent of accomplishing their motives).

The principal process of the judicial courts is to deduce the intent from the aftermath of the act. This is due to the fact that it is not absolutely necessary that the act was coherently and elaborately planned. Following this process, it can be assumed that just because such evidence does not exist, the perpetrator is not automatically innocent. Many perpetrators were intelligent enough so as not to leave any damning evidence in their wake. For example, there is not and never was any written order from Hitler to proceed with the mass murder of the Jews. This fact is, above all else, used as evidence by Holocaust deniers to state that the Holocaust never happened.[9] In order to avoid this kind of issue, the courts are therefore able to retroactively discern intent of the act from the following factors:

# The general context;

# Other grave acts that were committed;

# The extent of the atrocities;

# The systematic persecution of particular groups;

# And the repeated use of destructive acts of violence against these groups.[10]

#Complete or Partial Destruction

Genocide is generally attributed with the same characteristics as mass murder. However, according to the CPPCG, a genocide is not defined by the number of victims or its degree of severity but by the perpetrator’s intention and orderliness as well as the victim’s identity.[11] As such, the killing of one individual could also be classed as a genocide. The UN’s definition of genocide mentions this fact, ‘[…] with the intent to…completely or partially destroy […]’.

This statement poses the question as to what is meant by the term “partially”. Spencer argues that ‘partial destruction’ could mean that the perpetrators focus exclusively on one particular portion of the target group, without the aim of making the group’s survival impossible or, at least, difficult. It could also refer to an attack on a particular geographical location, which is essential to the group in question’s existence. It then becomes increasingly difficult for the group to survive without these political, physical or cultural foundations. As such, it is entirely possible for a genocide to occur through the partial destruction of the group in question – although without the eventual deaths of thousands of innocent people.[12]

#Cultural Identity

The fact that the CPPCG views the systematic abduction of children as genocide is heavily criticised, because such abduction is linked with the basis of the racial policy of the Nazi regime. Many children, most of whom were Polish, were ‘forcefully arianised’ because they were considered to be racially valuable. As such, the committal of Aborigine children to public and boarding schools should also be defined as genocide.[13] One’s cultural identity is nowadays viewed as part of one’s core self, and to have it forcibly removed is viewed as a personal attack and, at the same time, as an attack on human diversity. It is debatable whether an attack on a person’s cultural identity can be equated to killing them given that murder is a more direct and definite act – it means the end of someone’s life. [14]

Sources:
Barth, B. (2006) Genozid – Völkermord im 20. Jahrhundert: Geschichte, Theorien, Kontroversen. München: Verlag C. H. Beck oHG.
Spencer, P. (2012) Genocide since 1945 – Making of the Contemporary World. London and New York: Routledge.
Weitz, E. D. (2003) A Century of Genocide – Utopias of Race and Nation. Princeton and Oxford: Princeton University Press.

[1] Barth (2006) pp. 18-19
[2] Barth (2006) pp. 19-20
[3] Barth (2006) p. 25
[4] Barth (2006) p. 26
[5] Barth (2006) p. 27
[6] Weitz (2003) p. 9
[7] Weitz (2003) p. 10
[8] Spencer (2012) pp. 12-13
[9] Spencer (2012) pp. 13-14
[10] Spencer (2012) p. 14
[11] Barth (2006) p. 19
[12] Spencer (2012) p. 11
[13] Barth (2006) p. 20-21
[14] Spencer (2012) p. 10

Comments are closed.

FacebooktwitterInstagram