Jewish Word | The Twisted Path of the Word ‘Genocide’

By | Nov 16, 2023

Since October 7 and the subsequent Israel-Hamas war, the word genocide has been used liberally by parties on both sides of the conflict. Some Israelis and their supporters point to Hamas’s founding charter, which calls on all Muslims to “fight against Jews and kill them,” as evidence that the militant group intends—and on October 7 carried out—acts of genocide. Many Palestinians, anti-Zionist Jews and others, in contrast, have used the label genocide as a rallying cry against Israel’s actions around the world.

But what is genocide, exactly? The most widely accepted definition of the word is that contained in the 1948 United Nations treaty known as the Convention on the Prevention and Punishment of the Crime of Genocide, the first piece of humanitarian legislation adopted by the UN. The convention—which is currently commemorating its 75th anniversary—defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical [sic], 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.”

Theoretically, signatories to the UN convention are obliged to prevent and punish the crime of genocide, “in times of peace and times of war.” But, as is true of most international conventions, the details of how this would be enforced were never put into place.

Both the word and the UN convention were the brainchild of Raphael Lemkin, a brilliant and tortured Polish-Jewish lawyer who lost 49 relatives in the Holocaust. Before 1944, when Lemkin debuted the word with a slightly more expansive definition than what made it into the UN treaty, what we call genocides were sometimes termed “wars of extermination,” but in any case were usually considered a country or empire’s sovereign affair. By his own account, Lemkin—a gaunt man with shabby suits and burning blue eyes—had been obsessed with this kind of injustice since reading about the Roman executions of Christians as a child. That passion became Lemkin’s lifelong vocation when the 1921 assassination of Ottoman Grand Vizier Talaat Pasha by an Armenian assailant brought the Ottoman Empire’s systematic murder of Armenians during World War I to the world’s attention. Lemkin subsequently changed his studies from linguistics (he was fluent in at least nine languages) to law.

During World War II, Churchill famously called what was happening to the Jews a “crime without a name.” Lemkin changed that—his advocacy was so relentless that UN delegates would sometimes hide or pretend to be on the phone when they heard him approach. But this singlemindedness also extracted a high personal cost: He died in New York City in 1959 at age 59, unpopular, unrecognized, impoverished and convinced that his efforts had failed. His law was on the books—but unenforceable. “Lemkin really did have this idealistic view that if we could get everybody to understand what this crime was and write it down in law, that we then could try to prevent it from happening,” says Mike Brand, adjunct professor of genocide studies and human rights at the University of Connecticut and a senior fellow at George Mason University’s Raphael Lemkin Genocide Prevention Program. “Yet the unfortunate reality, as we know, is that ‘never again’ has become ‘again and again.’”

As a rule, genocide scholars avoid putting a number on how many genocides have occurred in, say, the past century. But by one count, at least 17 genocides on four continents have been perpetrated worldwide since 1948, with estimates of cumulative fatalities ranging from 34 to 306.5 million. There is widespread expert agreement that genocides are ongoing today in Myanmar, China and Sudan against the Rohingya, Uyghur and Masalit ethnic groups, respectively. However, uses of the word are often contentious. For instance, supposed genocide against ethnic Russians in Eastern Ukraine was the pretext for Putin’s invasion of that country in January 2022—but Ukraine then characterized the invasion itself as a genocide.

Can two peoples both be guilty of genocide in the same dispute? Brand says that the rhetoric of a group’s leaders can point to an answer. In the conflict between Israel and Hamas, for example, “very clearly, Hamas has spoken about genocidal intent, with genocidal language,” he says. “Similarly though, there are some within both the Israeli and the United States governments who have used genocidal rhetoric in talking about the situation in Gaza—quotes about ‘wiping out Gaza,’ ‘turning it into a parking lot,’ that kind of thing. If you were building a case, that language is similar to what was said in Rwanda, or even Nazi Germany.”

The United States didn’t ratify the UN Genocide Convention until 1988. Ironically, during the 1990s it went to extraordinary lengths not to use the word. “During the Rwandan genocide, there were lots of internal cables, lots of internal discussions, where U.S. government officials were specifically told not to use the term because they thought the 1948 Genocide Convention meant that they had to do something about it,” says Brand.

In a famous example of avoidant hairsplitting, Christine Shelly, a U.S. State Department spokesperson during the Rwandan genocide against the Tutsi ethnic group in the 1990s, told reporters that “acts of genocide have occurred” there. Asked how many acts of genocide it takes to make a genocide, Shelly demurred, responding, “I’m just not in a position to answer that.” Facing similar questioning, then-Secretary of State Madeleine Albright responded, “Well, I think, as you know, this becomes a legal definitional thing, unfortunately, in terms of—as horrendous as all these things are, there becomes a definitional question.” When these semantic discussions happen while a crisis is going on, Brand says it leads to “analysis paralysis.” “At the end of the day, people are suffering. We need to figure out a way to just say, ‘This is really bad, what can we do about it?’”

By the second Bush administration, the State Department had adopted the position that a genocide determination implies a moral—but not a legal—responsibility to intervene. Bush, Secretary of State Colin Powell and Congress all declared that the systematic killing of ethnic Fur, Masalit and Zaghawa people in Darfur by Sudanese militias was a genocide, and Bush—though his administration had expressed serious reservations about the authority of the new International Criminal Court (ICC) in The Hague—referred the case there for action.

The ICC was founded in 2002 as a standing court in charge of prosecuting individuals not only for genocide but also for other related but legally distinct forms of mass atrocity, such as war crimes and crimes against humanity. Before that, the crime of genocide was prosecuted in ad hoc international tribunals—when it was prosecuted at all. In total, the ICC has investigated 17 “situations” and secured 10 convictions to date—though none for genocide. With no police force to compel suspects to appear in court, and a policy against trying people in absentia, cases can proceed only when defendants present themselves or are somehow compelled to appear. Former Sudanese President Ahmad al-Bashir, for instance, is “suspected” by the ICC of three counts of genocide for instigating mass slaughter in Darfur during his time in office. But until he appears for a trial, the “alleged” genocide will go unpunished.

While the ICC can only prosecute individuals, the International Court of Justice (ICJ), also in The Hague, can charge governments with genocide—although it has yet to do so. Currently, Gambia is attempting to prosecute the government of Myanmar for genocide through the ICJ. “It’s an unfortunate reality that international justice doesn’t have a great track record of holding perpetrators accountable,” says Brand.

This matters, because important bodies such as the United Nations are unable to describe anything officially as a genocide until the crime has been successfully prosecuted. Alice Wairimu Nderitu, UN special adviser on the prevention of genocide, stresses that that is outside her remit. “Only a court of law can determine whether a genocide has happened or not,” she explains.

Single acts of violence can also be considered genocidal. Nderitu points to a member of ISIS who was convicted of genocide by a German court in Frankfurt for his enslavement and mistreatment of a Yazidi woman and her five-year-old daughter in Fallujah, which resulted in the child’s death. “The argument of the prosecution team was that he may have killed one person, but the Yazidi are people who’ve been targeted for genocide,” she says. “He was able to buy this woman only because she was a Yazidi—because she was from a community that was targeted for extermination, for total extinction.” In this case, the German court was able to use the principle of universal jurisdiction to bypass the more cumbersome ICC and send the ISIS member to prison for life. The lawyers for the victim, including Amal Clooney, hope that other countries will follow that precedent.

But for the most part, governments are no more likely to intervene in or punish the crime of genocide than they were at the time of Lemkin’s death. This year, for instance, there’s been a resurgence of ethnic violence in West Darfur, with hundreds of ethnic Masalit massacred and thousands more driven from their homes. Survivors report mass graves, infants shot in the head while strapped to their mothers’ backs, and targeted gang rape. Yet in September, U.S. Ambassador-at-Large for Global Criminal Justice Beth van Schaack avoided calling the ongoing violence a genocide, instead saying that it serves “as an ominous reminder of the horrific events that led the United States to determine in 2004 that a genocide was underway in Darfur.”

Nor is the word “genocide” free from politics. “For so many years, the U.S. government refused to say that the Armenian genocide was a genocide, because we had important strategic relationships with Turkey,” says Brand, noting that the Obama administration had promised to change this policy but reneged. The Biden administration finally gave the campaign against Armenians during World War I “genocide determination” in 2021. Yet, the United States labeled the Chinese campaign against the Uyghurs a genocide right away. “Why?” asks Brand, “Because we’re adversarial with China, so it makes sense politically.”

When he created the word, Raphael Lemkin hoped that enshrining the crime of “genocide” in international law would compel governments to prevent and punish such acts. Today, thousands of innocent people around the world are still at imminent risk of violent death and other atrocities based on their nationality, ethnicity, race or religion. Can the word “genocide” help them?

Opening picture: Raphael Lemkin coined the word “genocide.” Photo credit: Courtesy of the New York Public Library

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