Responding to Modern Genocide

At the Confluence of Law and Politics

Mark D. Kielsgard

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781135022815
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Developments in the understanding and treatment of genocide through the twentieth century have involved a combination of politics, public opinion, social trends, and economic development, and led to the substantive law of genocide and the assumption of international jurisdiction. This book analyzes incidences of genocide and mass atrocities, focusing on the political factors involved in modern counter-genocide efforts. Drawing on incidences of genocide and mass atrocity such as the Holocaust, the Rwandan genocide, and the Armenian genocide, Mark Kielsgard adopts a conceptual model that reveals the political factors which impact the international law of genocide, such as barriers and catalysts to transitional justice and the politics of genocide denial.

As a work which provides a focused picture of those influences and their significance to genocide studies, this book will be of great use and interest to students and researchers in international criminal law, conflict studies, and conflict resolution.

1 The evolution of genocide

Understanding the historical evolution of the crime of genocide is indispensable to comprehending the intersection between genocide and politics. It crafts a more feasible framework within which genocide can be understood, remediated, and prevented. This evolutionary process is a complex amalgamation of politics, public opinion, social trends, economic development and, ultimately, the substantive law of genocide and the assumption of international jurisdiction. International criminal law can be seen as an exercise of jurisdiction. Jurisdiction can be translated into judicial power to act; once it is acquired it rests within the province of courts and legal procedure. However, the assumption of jurisdiction is squarely within the competence of the political bodies and subject to political pressures, including international political structures, which are typically grounded in perceived national self-interest.

From its roots in the national assumption of extra-territorial jurisdiction to the rise of the international organization serving to police international norms of conduct, the assumption of jurisdiction and judicial oversight is key to the elimination of genocide. In Western states, during the industrial revolutions of the eighteenth and nineteenth centuries, the assumption of jurisdiction consisted of a delicate balance between the interests of the political and economic elites, and those of social trends driven by the needs of ordinary citizens and common moral and ethical moorings. Competing ideologies such as nationalism, natural rights theory, social Darwinism, German idealism, and the “law of civilized nations” contended in the development and the use of mechanisms of international intervention. Often the exercise of international jurisdiction was molded by the coincidence of practical considerations, including economic ones, and the conditions on the ground.

Other considerations also pushed the advance of international oversight such as the pursuit of the common good with the development of prohibition regimes against piracy, slavery, and the more sophisticated articulation of the laws of armed conflict. Meanwhile, the practice of colonialism and nurturing extreme nationalism would help fuel the fascism of the twentieth century and the supposed impunity of leaders resulting in greater threats of mass atrocity.

The twentieth century saw the twin catastrophes of the two World Wars, which garnered sufficient political will to drive colossal changes to the concept of international accountability with the development of the United Nations, the human rights treaty regime, the Genocide Convention, and the military tribunals at Nuremberg and Tokyo. The stalemate of the Cold War served to stop outward manifestations of international criminal law but nonetheless solidified international notions of the rights of the accused and the victims alike. It also served as a way-station for the maturing of international law to include a well-articulated human rights treaty regime and the strengthening of “soft law” norms. Moreover, it saw the trustee period during which former colonies achieved self-determination yet suffered under the yoke of heartbreaking poverty and so-called neo-colonialism.

At the close of the century, the concept of the global village took root with far greater international dependency and the rise of pluralistic states as multiculturalism became the norm with the rise of certain third world states to become players on the international stage. Insights can be gained by reviewing the social and political developments from history and lead to a greater understanding of the composite issues at stake in modern genocide theory.

Early genocide practices

The preamble to the Genocide Convention provides “… that at all periods of history genocide has inflicted great losses on humanity.”¹ Yet, genocide has been labeled a modern crime whose name was not coined until 1943.² Nonetheless genocide existed for thousands of years. What may be of greater significance is that although this crime has such a long pedigree, it has brokered virtually no international response until the twentieth century. Genocide, “the crime of crimes,”³ had merited no targeted international rules – regardless of the creation of other indicia of international law, even international criminal law, such as the customary international law of armed conflict or the international prohibitions against slavery and piracy or even international treaty law for the protection of minorities.

Genocide was not unknown in the ancient world. References to genocidal activity can be glimpsed in the written works of the ancient Greeks, Assyrians, Israelites, and Romans and found in the Iliad, the Old Testament and the writings of Plato, Thucydides, and Cicero to name a few.⁴ Some scholars opine that the accounts of mass destruction were usually fictionalized or were a product of the ruthlessness of ancient warfare. Others conclude that since the ancient world was dominated by city-states the “national” group requirement for genocide was easier to satisfy and thus not what had become known as genocide in the twentieth century, at least not on the same scale. Still others argue that the failure to destroy entire populations rebuts claims of the dolus specialis requirement.

However, some scholars conclude that “the relative rarity of mass murder suggests that it was not just the by-product of randomly brutal warfare.”⁵ They declaim that it was “perpetrated … when a community had committed a serious offense which called for the ultimate punishment”⁶ as “an act of ‘conspicuous destruction’ which served to display the power of the perpetrators.”⁷ Moreover, since the International Criminal Tribunal for the former Yugoslavia (ICTY) decision in Krstic regarding the genocide in the city of Srebrenica, modern legal interpretation concludes that the destruction of a single city qualifies as genocide.

The international response to genocide in the ancient world was largely absent except on a bilateral level with individual state acts of reprisal. Yet international relations during this time were far from undeveloped. As Van Wees observes:

International relations in the ancient world were complex, with a wide range of recognized relationships between states, including kinship and friendship, as well as formal treaty obligations, sophisticated diplomatic mechanisms, from inviolable envoys and ambassadors, via exchanges of letters and gifts, to international arbitration… . From as early as the third millennium B.C., wars were often concluded with pacts of non-aggression or treaties of equal alliance…⁸

Nonetheless, international norms of ancient cultures lacked prohibitions on sovereign conduct with respect to mass destruction and total war. Ancient customary law did contain norms of armed conflict⁹ but did not extend to prohibitions of total group destruction. Thus, there was no meaningful international response to genocide.

Among the problems inherent in the history of genocide in the early medieval ages are the lack of reliable historical records and problems associated with translations of very early texts.¹⁰ Later, as barriers to travel and trade were removed and as European peoples came into contact with different ethnic groups during the late medieval period, genocide could be better documented. This time (1000CE–1500CE) saw tremendous political and technological upheaval as well as relatively massive demographic population increases, growth of cities, and the mixing of people of different ethnic backgrounds. It also highlighted different religious persuasions.

During this epoch “outright ethnic destruction was most likely to occur where political subjugation was reinforced by fundamental religious difference.”¹¹ Among the groups to suffer most grievously in the West were the Muslims and the European Jews.¹² While this period saw significant political demarcation, the only organ that could be considered supranational in effect was the Catholic Church and it crafted no binding norms to protect ethnic or religious minorities. To the contrary, it often played an active or even a leadership role in the persecution of Muslims and Jews.¹³

During the colonial period of the Americas, genocide was practiced largely against indigenous people and resulted as a consequence of efforts of developed states to impress their patterns on the “new world.” In Axis Rule in Occupied Europe, Raphael Lemkin examined the connection between colonialism and genocidal activities.¹⁴ While Lemkin was exploring this connection the legal definition of genocide had not yet become firmly entrenched in international law. Lemkin observed ethnocide or cultural genocide, which has never been recognized as genocide under international criminal law.¹⁵ Thus, many situations of colonial genocide were in fact cultural genocide rather than biological or physical genocide. Nonetheless, the connection between colonialism and genocide (physical) has been well forged by scholars.¹⁶

Post-medieval colonialism can best be observed as having two broad categories of motivations: the quest for living space and the quest for natural resources (especially mineral wealth). Although overlap exists, the Spanish colonization of Latin America that began as a quest for mineral wealth but converted into expansionism while English, Dutch, and French colonization in North America was aimed more toward living space. The issue of what to do with the indigenous populations usually garnered a violent response as concluded by Nicholas A. Robins: “Intentional policies and events, such as genocidal massacres to aid conquest, forced relocation of subjects, deprivation of livelihood, separation of families, and systematic cultural destruction, were facilitated by an unintended, demographic collapse of monumental proportions.”¹⁷

In nineteenth century Africa the quest was largely for natural resources to feed the engines of the industrial revolution. In many regions there was little desire to relocate large portions of the European population to the African continent¹⁸ but rather a desire to exploit the labor and available natural resources. Examples of some of the worst occurrences took place in German South West Africa and the Belgian Congo. In the “Congo Free State” the resources most coveted in the nineteenth century were ivory and rubber.¹⁹

The question of genocide in colonized territories turns on intent.²⁰ Indeed, the question of colonialism and genocide of indigenous populations comes down to whether the master specifically intends to destroy the native group or if their destruction is only incidental to development plans. In Africa, the native peoples could be seen as the workforce of the colonial masters and the demographic collapse was an unfortunate by-product—but arguably not intended. In America, la...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Foreword
• Acknowledgments
• 1 The evolution of genocide
• 2 The politics of prevention
• 3 The cost of denial
• 4 Transformative remediation
• Bibliography
• Index