Genocide: The Act as Idea

Genocide

The Act as Idea

Pennsylvania Studies in Human Rights

Bert B. Lockwood Jr., Series Editor

A complete list of books in the series is available from the publisher.

Genocide

The Act as Idea

Berel Lang

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright © 2017 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

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Cover design by John Hubbard

ISBN 978-0-8122-4885-2 hardcover

ISBN 978-0-8122-9364-7 e-book

For Lela, Nina, and Gabriel Kornfeld and Hannah, Leah, and David Riegel

Simon Dubnow: Obviously if killing one man is a crime, killing of entire races and peoples must be an even greater one.

Raphael Lemkin: Killing an individual is a domestic crime—every nation deals with it . . . But murder of a whole people must be recognized as an international crime, which should concern not just one nation but the entire world.

—Raphael Lemkin’s account of a conversation with Simon Dubnow in Riga, 1940.

[Soon afterward, Lemkin escaped to the United States; Dubnow was killed by the Nazis in December 1941.]

Contents

Preface

The United Nations Convention on the Prevention and Punishment of the Crime of Genocide

Part I. Between Genocide and Genocide

1. The Evil in Genocide

2. Genocide and Comparative Evil: Counting Victims, Numbers, Degrees

3. Disputing Genocide: Issues of Uniqueness and Group-Identity

4. The Pushback and Its Search for a Replacement

Part II. Genocide as Past and Presence

5. Genocide and Holocaust: Language as History

6. Raphael Lemkin, Unsung Hero: Reparation

7. From Genocide to Group-Rights

8. Arendt on the Evil in Genocide: Banality’s Depths

9. Genocide-Denial

AfterWords

Bibliographical Notes

Index

Preface

My book’s purpose is a defense of the concept and term genocide as it has evolved and been applied to the act of genocide that had a much longer history. Admittedly, even claiming a need for such a defense may seem questionable, since the concept is now so familiar and carries such weight in legal, moral, and popular discourse, announced in newspapers as well as learned journals, that a predictable reaction might be to ask why the term or idea would warrant a defense any more than the phenomenon itself would deserve one. But a defense is called for, in part because genocide, from its first appearance and continually since, has been criticized, conceptually and in its applications, on grounds of vagueness, obscurity, inconsistency—in sum, as inadequate for what it professes as its purpose. Such criticism has been accompanied, moreover, by proposals for replacement terms claiming to accomplish whatever genocide is intended to, and to manage that without its alleged faults. Beyond this, the concept has been charged with a failure to accomplish the goals ascribed to its formulation in the United Nations’ Genocide Convention (to prevent and to punish genocide) and also with opening itself to misuses of the term, as it has become virtually a catchall synonym for atrocity. If the concept of genocide is to sustain the legal and moral weight it has acquired, then this nest of basic and varied objections warrants a response that confronts and assesses them. It is this I attempt here, incorporating proposals based on certain of the charges, yet insisting on what I argue is the very important contribution that genocide has made to ethical and legal discourse. Far from conceding that the term should be discarded and replaced, as its most extreme critics have urged, I believe this incorporation strengthens its claims in asserting the distinctive crime of group-murder. The effectiveness of genocide itself, in naming, defining, and calling attention to the extreme phenomenon it refers to, is, I hope to show, compelling; the following discussion brings evidence and arguments to support this claim.

The book moves, then, along three related lines: first, analyzing the specific reference of the concept of genocide in its recognition of genocide as a distinctive act and crime; second, analyzing a number of objections raised in the pushback against genocide in its formulation and practical applications, and (as related to these) assessing the alternative terms or concepts proposed for replacing it; and third, responding with proposals for changes to certain flaws in genocide as identified by its critics although, as warranted, also by its advocates. The analysis as a whole revolves around the canonical formulation of genocide in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, which was passed by the General Assembly meeting in Paris on December 9, 1948 and which provides still the authoritative—unamended—definition of the crime. (The text of the Convention appears in the book’s first section.) This durability at least suggests the force of the basic concept of genocide, although the near-certain difficulty of reaching agreement on formal revision of the Convention in the present United Nations (with 193 nation-members now, in contrast to the 56 nation-members at the time of the Convention’s initial, unanimous adoption) has clearly been a factor. One has also to recognize—a point to be addressed later—that the same avoidance of revision has found channels for criticism through other conventions or declarations related to human rights (such as the Universal Declaration of Human Rights) that might be taken to include the crime of genocide without specifically mentioning it and thus also accepting the problems found in it. In this sense, the defense here is a response also to avoidance or neglect.

Even aside from the assessment of specific points and means of criticism directed at it, the Genocide Convention has had an arguably irreversible impact on public and formal thought and practice. This effect is not itself proof of cogency, but it does suggest that any objections to the Convention and thus to genocide will have the burden of providing positive proposals that also take account of the specific character of genocide—in this way retaining the core of the Convention. That the charge of genocide has also been misused in political, cultural, and popular discourse is indisputable, but the fault in that, it seems clear, has been in the concept’s abuse, not in the concept. That the Genocide Convention has not since its adoption prevented occurrences of genocide as its title affirms is no more an argument against the Convention than is the violation of any other laws or regulations. The deterrent effect of laws is debatable in this instance as others; in any event, deterrence is not the only purpose or function of such legislation.

Thus the design of my account here and its defense of genocide: to analyze the principal objections that have challenged genocide conceptually and to scrutinize the alternative terms proposed as its replacements, recognizing warranted changes in the normative thinking about genocide. Why does such a defense matter? Most obviously because genocide itself matters: the act of group-murder that until the mid-twentieth century had remained an unidentified form of murder, unspecified in either the law or moral reflection. In the view defended here, the naming and conceptualization of the act of genocide marks a notable advance in the history of moral and legal thought—progress impelled by the need to catch up with the progress in human imagination and conduct that produced the acts of genocide themselves.

More than anyone else contributing to this advance in legislative and practical consequences as well as its conceptual formulation, Raphael Lemkin, coiner of the term genocide, warrants recognition. Such recognition has been slow in coming, and the discussion here, appearing almost simultaneously with several other books attesting to the theoretical and practical importance of his role, joins the effort to rectify that. It should be noted that Lemkin’s efforts on behalf of genocide also took an arguably decisive step in advancing the concept of group-rights, a still broader political and moral principle. Although Lemkin himself rarely used the term group-rights, the concept is implicit: to identify genocide as a crime against a group’s existence without presupposing a group’s right to life, analogous to a right to life for individuals violated by individual murder, would be inconsistent—and this Lemkin recognized in just those words. The efforts required to realize these accomplishments were for Lemkin a lifelong, single-minded, and lonely struggle against traditional preconceptions and established political interests—a struggle epitomized in his early and solitary death. His monument was of his own design: the UN Convention on the Prevention and Punishment of the Crime of Genocide.

***

A number of chapters in the book were written initially for separate occasions as lectures, invited papers, and essay reviews; chapters that were also published in earlier versions have been substantially revised. Citations and background references are included, by chapter, in the section "Bibliographical Notes."

I am indebted to many friends and colleagues who generously contributed readings, hearings, and discussions to the book. They have also at times been generous in their criticism—and since I’ve not always incorporated what they had to say along those lines, my appreciation necessarily extends with a no-fault clause. So thanks from these several directions to Brian Fay, Simone Gigliotti, Yaakov Golomb, the late Tony Judt, Ethan Kleinberg, Joel Kraemer, Leslie Morris, Howard Needler, Dalia Ofer, Andy Rabinbach, Hayden White, Elhanan Yakira, and Steven Zipperstein. Susan Laity has been an invaluable editor of the manuscript, and I am especially indebted to Peter A. Agree of the University of Pennsylvania Press for his more-than-editorial help. Barbara L. Estrin’s direct contributions have been among the many devoted and imaginative ways in which she has sustained the book’s—and our—history.

The book is dedicated to my grandchildren in the hope that in their time they may find the issues the book addresses obsolete.

B. L.

New York, 2016

The United Nations Convention on the Prevention and Punishment of the Crime of Genocide

The central historical and still canonical formulation of the concept of genocide remains the Convention on the Prevention and Punishment of the Crime of Genocide passed by the General Assembly of the United Nations, on December 9, 1948 and unamended since then.

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Article 1

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article 2

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:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article 3

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

Article 4

Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Article 5

The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3.

Article 6

Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Article 7

Genocide and the other acts enumerated in Article 3 shall not be considered as political crimes for the purpose of extradition.

The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

Article 8

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article 3.

Article 9

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article 3, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Article 10

The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948.

Article 11

The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly.

The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.

After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid.

Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 12

Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

Article 13

On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a procès-verbal and transmit a copy of it to each Member of the United Nations and to each of the non-member States contemplated in Article 11.

The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession.

Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession.

Article 14

The present Convention shall remain in effect for a period of ten years as from the date of its coming into force.

It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period.

Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.

Article 15

If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective.

Article 16

A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General.

The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.

Article 17

The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in Article 11