Raphael Lemkin Trial

“Consider the case of a farmer who owns a flock of chickens. He kills them and this is his business. If you interfere, you are trespassing.” Raphael Lemkin, an impressionable philology scholar at the University of Lvov discovered that the cardinal sin of violating state sovereignty could be used to safeguard those who attempted to exterminate minorities. After learning this, he studied and lectured international law. Lemkin postulated the tendency of history to repeat itself, regardless of context, and realized that states seldom pursue justice out of moral convictions, but do so merely in self-interest. If such atrocities were to be prevented, it would take a joint effort on part of the international community. Lemkin searched for a term
that would describe assaults on all aspects of nationhood, connoting not only full-scale extermination but also Hitler’s other means of destruction, choosing “genocide”. On December 11, 1946, one year after the final armistice, the General Assembly unanimously passed a resolution condemning genocide as “the denial of the right of existence of entire human groups,” which “shocks the conscience of mankind” and is “contrary to moral law and to the spirit and aims of the United Nations.” (Power, 54) The resolution tasked a U.N. committee with preparing a treaty prohibiting the crime. After Lemkin’s bruising year of drafting battles, the 1948 Convention of the Prevention and Punishment of the Crime of Genocide settled on a definition, which can be found in article 2:
…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.
States would no longer have the legal right to be left alone. Interfering in a genocide state’s internal affairs was not only authorized, but also required by the convention. On December 9, 1948, the United Nations General Assembly voted unanimously to “liberate mankind from such an odious scourge.” (Power, 59) Two years later, the convention was ratified, making the attempted destruction of nations, ethnicities and religions an international crime.
According to convention rules, once unfolding genocides become apparent, contracting parties must raise the situation to the U.N., whom are required to act, in line with the convention’s purpose, to thwart further carnages and punish those already committed. However, since the adoption of the convention, the U.N.’s response has been paralyzed by legal debates over the actual definition, and whether a situation constitutes or does not constitute genocide. The convention requires the deterrence of further atrocities once the genocide has arguably begun; nonetheless, the convention fails in that it does not explicitly require the prevention of genocidal actions from taking place in the future. Although many stages exist before that of extermination, these earlier stages are evident of crimes against humanity, however it is unclear of whether they will, or will not, constitute genocide. Consequently, as the legal obligation lies with genocide alone, many have argued that these actions are not evident of genocidal process as an excuse for non-involvement in impeding the atrocities. Thus, preventative action is rarely, if ever, discussed until mass violence has already commenced. It is imperative that preventative actions take precedence over general conversations about genocide. A clearer definition could lead to swifter decisions. The quintessential flaw in the definition of genocide, as outlined by the convention, concerns the tenet of “intent.”
The Genocide Convention necessitates the, “intent to destroy,” yet the form of intent required is not overtly stated.
The ambiguity of the definition has led to abundant dispute over whether particular events constitute “genocide,” hindering the effectiveness of the convention. Thus, rather than focusing on prevention and punishment, the two main tenets of the convention, there has instead been much dispute over whether particular events constitute “genocide,” hindering the effectiveness of the Convention. The traditionally accepted definition demands specific intent. The main difficulty in dealing with this specific intent is obtaining irrefutable proof that the perpetrator intended to destroy the group, in whole or in part. The issue lies in confusion between motive and intent. Motive refers to what drives the perpetrator to commit their crime, why they did it, and proof of this is not required for conviction. Conversely, if perpetrators intend to commit prohibited acts and kill a substantial part of the group, they are committing genocide. A number of contemporary conflicts, including Cambodia and the former Yugoslavia, are exemplary of situations wherein no paper trail led to specific intent being inferred from the cumulative effect of objective conduct. Even, “U.N. officials in the former Yugoslavia resisted publicizing atrocity reports.” (Power, 403) Perpetrators are acutely aware that disclosing their actions would interfere with achieving their objectives. Thus, if
their objective is destroying the target group, particularly if it is still underway, they are unlikely to risk the possible action taken against them by disclosing their intentions. However, the issue is far more multifaceted than this as, “…even once they are under way, mass atrocities do not lead inexorably to bottomless massacres. The killers usually have political goals… Their use of violence can be excessive, but more important, it is often instrumental.” (New York Times, 2012)
Prime examples of politically strategic genocides, which have been justified as counter-insurgencies, include Armenia, Iraq, and those of the former Yugoslavia. In 1915, before the introduction of the Genocide Convention, the Turkish government was able to justify, “the wholesale deportation of the Armenians by claiming that it was necessary to suppress Armenian revolts.” (Power, 2) After Russia declared war on Turkey, they had encouraged Turkey’s Armenian population to revolt against Ottoman rule. The pretext of an Armenian insurgency and the cover of war allowed the government to eradicate Armenian presence in Turkey. Turkish Armenians “were not incidental ‘by-products’ of war but in fact resulted from carefully crafted decisions made by Turkey’s leaders.” (Power, 3) The international community was indifferent as ever, easily accepting Turkish excuses, and doing little to contest Turkish horrors. Even after the creation and ratification of the genocide convention, which was supposed to prevent such atrocities, history repeated itself in Iraq. Ever since the beginning of the Iran-Iraq war, Sadam Hussein was especially concerned about his “Kurdish problem,” wherein armed Kurds were able to use shelter of the mountains to stage rebellions against Iraqi forces, with some even aligning themselves with Iran. Consequently, “Hussein decided that the best way to stamp out rebellion was to stamp out Kurdish life.” (Power, 171) Therefore, Kurds were forced from their homes, and/or gassed and killed with bureaucratic precision. Although the offensive was billed as a counter-insurgency mission, armed Kurdish rebels were by no means the only targets. Sadam Hussein aimed his offensive at every man, woman and child who resided in the new no-go areas, and gasses or machine-gunned them in planned mass executions. Though genocide may not have been Hussein’s primary objective, it is clear that the destruction of Iraq’s rural Kurdish population was the means he chose to end it. “Hussein’s August offensive launched after the end of the war with Iran,” was demonstrative of his intent to destroy the Kurdish ethnicity in part. (Power, 202) However, the first postwar wave of enthusiasm only came after Sadam Hussein invaded Kuwait. Despite the fact that the actions undertaken during the Anfal constituted genocide, the international community used the fact that it did not fit the requirement of specific intent to justify non-intervention policy until their was a threat to international peace and security. The Genocide Convention, which was supposed to revoke state sovereignty while atrocities are being committed, hindered action by allowing world leaders to dance around the “g-word” in attempting to gauge intent. If the specific intent definition had been avoided, the atrocities could have been brought to a halt earlier, and it would not have taken a cross-border invasion in order to gain the international community’s attention. Thus no war crimes tribunal came into existence. The Genocide Convention’s uselessness was reminiscent of Nuremberg, wherein they, “prosecuted only those crimes against humanity and war crimes committed after Hitler crossed an internationally recognized border.” (Power, 49) This problem of intent has allowed officials to compose, “a story, based on ethics rather than evidence, that incorrectly assumes all perpetrators of mass political violence are insatiable killers and that dictates who should respond (Western nations), how (with military intervention) and why (for justice and democracy). It is a morality tale that undermines the best ways to deal with the worst crimes.” (New York Times, 2012)
It is arguable that the specific intent requirement has allowed perpetrators of genocide to evade conviction. A chief example of this can be seen in the overall success of the International Tribunal for the former Yugoslavia (ICTY) regarding prosecutions of genocide: the first time the issue was deliberated in an international legal setting. Genocide did take place in Srebrenica: “By deciding to kill all the men of Srebrenica of fighting age, a decision was taken to make it impossible for the Bosnian Muslim people of Srebrenica to survive.” (Power, 479) What was ethnic cleansing quickly became genocide due to the undermining of the viability of the group through the systematic prevention of births. The International Law Commission’s initially utilized the specific intent approach, but due to its ineffectiveness in obtaining a conviction, they later adopted a knowledge-based approach. This has been widely criticized because scholars, such as William Schabas, argue that, “…prosecutors had to stretch the definition of genocide to make it fit Srebrenica, as it's not clear that what Bosnian Serb leaders and commanders were doing was trying to eliminate the Bosnian Muslim people as such.” (Economist, 2011) However, by excluding consideration of the perpetrators' motives for killing the military-aged men, such as seeking to eliminate a military threat as the defense alleged, the ICTY broadened the intent interpretation and was thus able to affect justice. The disagreement surrounding the issue of proving specific intent is epitomized by Darfur, where mass atrocities turned into genocide in 2003.
The U.N. Commission’s report on Darfur would set the stage for the “genocide” deliberation. The events found in the report indisputably prove acts of genocide. However, according to Alex de Waal, “ The question of intent is somewhat more ambiguous. There is no demonstrated intent to eliminate physically an entire ethnic group, and—with the exception of the Nuba in 1992-1993—no attempt to wholly eliminate the identity of a group. Both the stated and the real aim has been to subjugate.” Though de Waal clearly did not understand that genocide could be committed against a group in part, his discussion of the confusion over intent is vital. As such, the issue of intent in the convention has allowed the Sudanese governments, as well as numerous others, to evade justice by justifying their actions in the context of military and political threats as counter-insurgency. (de Waal, 28) However, Darfur set an important precedent when the Secretary of State Colin Powell deemed it genocide and sent abundant humanitarian aid, but then noted that U.S. policy would not change. If the duty to intervene was placed on specific countries, such as those of the Security Council, who are able to intervene, this conflict could be avoided altogether. Moreover, even U.N. agencies have been highly effective in providing humanitarian aid, yet absent in action.
According to Nicholas Kristof, “That is partly because Sudan is protected on the Security Council by Russia and especially by China.” (New York Review of Books, 2006) In other words, the Genocide Convention requires the collective action of the international community, which can easily be vetoed by a Security Council country with the right political incentive.
As Lemkin emphasized, genocide is a crime against all of humanity because it permanently reduces the cultural diversity that is humanity’s heritage. Genocide, unlike other human rights violations, can almost never be prevented or punished unless the government that perpetrates the crime is forcefully restrained or overthrown. There can be no long-term peace without justice. Including a specific intent requirement renders the Genocide Convention ineffective, making its preventive purpose nearly unachievable. If reports appear of acts that constitute genocide under the convention by those who have the ability to destroy a group, in whole or in part, action should be warranted. The central focus should be on these groups protection, rather than the perpetrator’s specific state of mind. If the knowledge-based approach were adopted, politicians would no longer be able to dance around the term genocide in either prosecution or prevention. The ineffectiveness of the Genocide Convention, resulting from this intent hole, has forced the U.N. adoption of the “Responsibility to Protect,” (R2P) which sets a moral imperative to protect civilians, regardless of the intent of the perpetrators. (de Waal, 31) The Genocide Convention was supposed to allow countries to violate state sovereignty in preventing such carnage, yet the first and only intervention of the international community to head off a potential genocide was not in accordance with the U.N., under the Genocide Convention at all, but rather a NATO mission under the principle of R2P in Kosovo. (Power, 448) Indeed, there can be no greater testament to the ineffectiveness on the Genocide Convention than Kosovo.