Maryland Bar Bulletin
Publications : 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.

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Publications : Bar Bulletin: August, 2004

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