Criminalizing mass-murder: 65 years after the UN’s first condemnation of genocide

On December 11, 1946, the United Nations General Assembly adopted Resolution 96 (I) which declared genocide, defined as “a denial … Continued

On December 11, 1946, the United Nations General Assembly adopted Resolution 96 (I) which declared genocide, defined as “a denial of the right of existence of entire human groups,” to be “a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable.”

This resolution was adopted in the shadow of the annihilation of approximately 6,000,000 European Jews as part of Hitler’s “Final Solution of the Jewish Question,” and less than two months after ten leaders of the Third Reich had been executed at Nuremberg for “crimes against humanity.” 

In addition to the Holocaust’s Jewish victims, up to 220,000 Sinti and Roma were similarly killed during World War II, as were Polish intellectuals and Communist officials, among other targeted groups.  Germany was not solely responsible for such atrocities.  The collaborationist French authorities rounded up tens of thousands of Jews and deported them to their death, and the Nazi puppet regime in Croatia murdered hundreds of thousands of Serbs alongside Yugoslavia’s Jews.

It was in this context that a Polish Jewish lawyer named Raphael Lemkin had coined the term genocide, by which he meant “the destruction of a nation or of an ethnic group,” in his 1944 book,
Axis Rule in Occupied Europe
, “from the ancient Greek word genos (race, tribe) and the Latin cide (killing).”  In a subsequent 1946 article, Lemkin broadened the meaning of genocide to also include religious and racial groups.

The need for such an expansion of the legal lexicon became clear after the full scope of the human devastation perpetrated by Nazi Germany had been laid bare before the International Military Tribunal at Nuremberg.  “By implication,” the New York Times declared in an editorial on August 26, 1946, “genocide has already been recognized as a distinct crime, with a distinct technique and distinct consequences.  It now remains to incorporate the term in international law, which is what Professor Lemkin has already half accomplished.”   

Less than two-and-a-half years later, on December 9, 1948, the UN General Assembly completed this process by adopting the Convention for the Prevention and Punishment of the Crime of Genocide.  Henceforth, the international community ostensibly committed itself “to prevent and to punish” a series of specific acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

The Convention differs from, and is weaker than, the 1946 UN Resolution in that while it added “ethnical” entities to the protected groups, it no longer covers killings or persecutions committed on “political” or “other” grounds. 

Unfortunately, the ambiguities inherent in such inconsistent characterizations of genocide have allowed for a sophistic intellectualization of the term.  Professor Steven T. Katz of Boston University, for example, rejects the Convention’s definition as simultaneously too narrow in scope – he would include “political, social, economic, and gender victimization” – and too broad – he refuses to recognize as genocide anything less than the intended physical destruction of an entire given group.  As far as he is concerned, any intent to kill only some members of such a group – Bosnian Muslims in Serb-claimed territory as opposed to all Bosnian Muslims anywhere – does not qualify.  Thus, Professor Katz, who happens to be a friend of mine, recently told the New York Times that the massacres of Tutsis in Rwanda constituted only “mass murder” and should not be classified as genocide. 

I respectfully disagree.  No survivor of any genocide deserves to have his or her suffering trivialized or belittled.  It is simply unconscionable to suggest that Tutsis murdered in Rwanda solely because they were Tutsis, or Bosnian Muslim men and boys shot to death at Srebrenica by Serbian thugs for no reason other than their ethnicity, were any less the victims of a genocide than my grandparents and brother who were gassed at the Auschwitz-Birkenau death camp.

Genocide is not the only abomination made explicitly punishable in the wake of the Holocaust.  Crimes Against Humanity, the once amorphous cause of action created in August of 1945 for the purpose of prosecuting major Nazi war criminals, have now been codified in the Statute of the International Criminal Court to include murder, extermination, torture, rape, and sexual slavery, among other specified offenses, “when committed as part of a widespread systematic attack directed against any civilian population, with knowledge of the attack.”  Such crimes against humanity also form the cornerstones, together with genocide and war crimes, of the statutes of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, as well as the law under which Khmer Rouge leaders are now being tried for atrocities committed in Cambodia by the Pol Pot regime between 1975 and 1979.

As we mark the 65th anniversary of the first formal recognition of genocide as a crime under international law, we should reflect on the progress we have made since the time when heads of governments and their acolytes believed that they could murder Jews, Roma and Sinti, Armenians, or members of other national, religious or ethnic groups with impunity.  We must also keep in mind at all times that while posthumous justice for the victims of genocide is an important consideration, the most critical imperative of both Resolution 96 (I) and the Genocide Convention has always been the prevention of future carnages.  One need only look at Darfur to realize that this goal is far from accomplished.  We have indeed evolved since the end of World War II, but not yet enough to be considered truly civilized.

 

Menachem Z. Rosensaft, the son of two survivors of Auschwitz and Bergen-Belsen, is General Counsel of the World Jewish Congress and teaches about the law of genocide and World War II war crimes trials at Columbia Law School, Cornell Law School, and Syracuse University College of Law

  • jkatz2

    The international agreement on these legal bounderies of behavior was a huge step forward. As the author concludes, would that the follow through were up to the standards, despite the progress made.

  • reformthesystem

    The learned opinion writer might have mentioned that Rwanda and Burundi, former Belgian colonies, had never adopted the International Convention prohibiting Genocide and that any reasons for that are not apparent.

    He might also have mentioned that BU Prof. Katz’s refusal to recognize as genocide anything less than the intended physical destruction of an entire given group was already refuted by the International Court of Justice’s 26 February 2007 judgment in the case by Bosnia and Herzegovina against Serbia and Montenegro. The Court there decided that (1) acts committed in and around Srebrenica from about 13 July 1995 were acts of genocide against the group of the Muslims of Bosnia and Herzegovina as such committed by members of the force of the Serbian Republic in Bosnia, which were covered by Article II (a) and (b) of the International Genocide Convention, and (2) Serbia had breached that Convention by failing to prevent that Srebrenica genocide.

    Seemingly, an element of proof needed to establish the commission of genocide by Serbia was planning to eliminate the targeted group (as was done at the 20 January 1942 Wannsee conference). For reasons not made apparent, the evidence before the Court did not have convincing proof that the Serbian government (Milošević) did that kind of planning, although such evidence was reportedly available in files of the International Court for the Former Yugoslavia in The Hague, Netherlands, according to a French lady employee who was dismissed and later prosecuted for revealing the files exist. In spite of that, the International Convention does place on member states a duty to prevent genocide, and the International Court did find Serbia breached that duty.

  • IVukic

    Great article but it did omit the persecution and extermination of Jews in Serbia during World War II. While all the countries of Europe where persecution and extermination of Jews occurred have acknowledged that horrible past and their individual perpetrators convicted, the Serbians have managed skilfully to hide their own role in this. They always talk of huge, unverified numbers (hundreds of thousands) perished Serbs in Croatian concentration camp but suppress their own history when it comes to Jews.
    Under the pro-Nazi government of Milan Nedić, Serbs collaborated with the Nazis in disseminating anti-Jewish propaganda, in plundering Jewish property, in delivering Jews for execution, and in murdering Jews in concentration camps.

    Milan Nedić, much like Ante Pavelić in Croatia, played a decisive role in the persecution Serbia’s Jews. On September 2, I94I, Nedić promised that he “will act in the strongest way against the Jews who should be removed from all public service and gathered in concentration camps. Also prominent Serbian clerics within the Serbian Orthodox Church, by openly supporting the Nazis and espousing theological justification for the persecution of the Jews, also bear responsibility for the Holocaust in Serbia. On July 7, I94I, three months after the German occupation of Serbia-and the day the Partisan uprising commenced the Serbian Orthodox Church’s Holy Episcopal Synod declared that it “will loyally carry out the laws and orders of the occupying and local authorities, and it will use its influence through its organs to the complete maintenance of order, peace. In the eighth month of the German occupation, with the murder of the Jews well underway in Serbia and with anti-Jewish measures well publicized, Serbian economic minister Mihailo Olčan proclaimed that “the Jews have met the fate they deserved.

    Ultimately, about I5,000 Jews perished in Nedić’s Serbia. This was 94 percent of the Jewish population covering an area that included Serbia proper (11,24

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