Maryland Bar
Bulletin
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Bar Bulletin |
August, 2004 |
Never Again is Now
~The law of genocide~
By Jason A. Abel
At the time of the
Holocaust, the world vowed “never again.” At first this pledge to prevent
and stop similar mass murders was a moral obligation assumed by the United
States and the international community. And in 1948 at the U.N. Convention
of Genocide, it became a legal obligation as well. For the first time, the
international community imposed a legal duty to respond to any acts which
meet the definition of genocide, wherever they are committed.
Yet in the years that
followed, the world – including the U.S., which did not ratify the
Convention of Genocide until 1986 – turned a blind eye to genocide as it
occurred over and over again. The technical workings of the Convention are
such that, if murderous acts are not deemed genocide, participating
countries are not obliged to act. Thus, by refusing to label blatant acts
of ethnic cleansing, rape, xenophobic murder and systemic destruction of
ethnic minorities as genocide, world powers were able to circumvent
their duty. The U.S. was no exception. As Samantha Power brilliantly
conveyed in her book A Problem from Hell: America and the Age of
Genocide, acting was not in this country’s self-interest.
While many believe that
killing must rise to the level of the Holocaust, in which six million Jews
were killed, to be termed genocide, a closer look reveals that this
is not the case. Those who commit genocide need not attempt to kill all
the members of a specific group.
In fact, genocide is
not defined as the systemic destruction of all who belong to a discrete
minority group. Article Two of the Convention defines genocide, and
thereby the incidents in which the international community must intervene,
as “any of the following acts committed with the intent to destroy, in
whole or in part, a national, ethnical, racial or religious group,
as such:…Killing members of the group…Causing serious bodily
harm…Deliberately inflicting on the group conditions of life calculated to
bring about in physical destruction in whole or in part…Imposing measures
intended to prevent births within the group…Forcibly transferring children
of the group to another group.”
An important aspect of the
definition that is constantly overlooked is summed up by three simple
words: or in part. Hence, the intent to totally exterminate a group is not
required for actions to be called genocide.
Over the years, lawmakers
have attempted to blur this point, resulting in the inaction of the United
States and the United Nations. By definition, since the Convention and
after the Holocaust there has been at least five times occurrences of
genocide: Cambodia (by the Khmer Rouge in the mid-1970s); Iraq (by the
Ba’ath Party Government against the Kurds in the 1980s); the former
Yugoslavia (by the Serbian Government against ethnic Croats, Bosnians and
Muslims in the early 1990s, and later ethnic Albanians and Kosovars in the
late 1990s); and Rwanda (by the Hutu-led government against the Tutsis in
1994). (In addition, other 20th century atrocities include the Armenian
genocide committed by the Turkish government in 1915.)
In all but one of these
cases, the international community (led by the United States) had been
either delinquent in acting or did not act at all. Arguably, as a result
of this inaction millions have been killed – one of the most glaring and
recent omissions was in Rwanda in 1994, where 800,000 Tutsis and
politically-moderate Hutus were killed in a span of only 100 days.
Only in Kosovo did the
United States and NATO lead a relatively-prompt response against Slobodan
Milosevic. Under the command of General Wesley Clark, NATO and U.S. jets
bombed Milosevic into submission, which stopped the murders and allowed
ethnic Albanians to return to their homes.
Today, we see history
repeating itself in Sudan. Darfur, in western Sudan, is home to close to a
million individuals whom the government and the Arab-led militia (called
the Janjaweed) call “Africans” because they have darker skin. The
government disguises its attacks as self-defense against government
insurgents in the region. This is the same explanation we have heard from
governments that have perpetrated genocidal atrocities in the past.
Further, firsthand accounts and observations by international groups prove
otherwise. Men of the village are reportedly round up and shot. Women are
raped by the Janjaweed militia in an attempt to make “light babies.”
Others are forced to flee their burning villages for refugee camps. As the
rainy season approaches, aid workers fear disease could kill up to 350,000
more innocent civilians.
Thousands of innocent
people are being murdered in Sudan because of their skin color and
ethnicity. This is – by legal definition – genocide. Regardless of how
many times our lawmakers and diplomats visit the region, they neglect to
use that magic word which will trigger a full-scale, international
response. They should call it as it is – genocide – because “never again”
is now, and the international community can wait no longer.
Jason A. Abel is an Associate at O’Melveny & Myers in Washington, D.C.
Previously he served as Editor-in-Chief of the University of Pennsylvania
Journal of Constitutional Law and created the Anti-Hate Anti-Violence
Campaign at the University of Illinois.
