Raphael Lemkin on Genocide, and Why States Are Not Good Arbiters of Moral Action
Last November, I wrote for now-defunct OnlySky about humanity’s long-term push to develop “human rights”: no easy feat, when up against the divine right of kings, and other statist notions of entitlement for a country to do what it pleased to anyone.
In “No monsters, no monarchs, only humans”, I covered a lot of the modern moves toward codifying laws against war crimes. As I wrote in the intro,
But for much of Western history, the divine right of kings and the righteousness of their empires in furtherance of religion’s spread made it difficult to enact a different sense of collective responsibility for the slaughter of whole populations, along with the targeted rape, torture, and displacement of civilians. The role of slavery in civic life, underpinning whole state economies, also made coherent articulations of just action difficult for sitting officials and average citizens alike. When people are raised to believe that some life simply isn’t as valuable as other life, that notion of relative worth shows up in a range of social contexts.
Today, we face stridently held and competing notions of appropriate conduct in wartime scenarios. In the last two months with Israel and Gaza, the last two years with Russia and Ukraine, and many other conflict scenarios in the 21st century, we have struggled to uphold consistent moral approaches to citizens, uniformed combatants, and irregular fighters (including terrorists, guerrillas, and spies). Whatever “side” one finds oneself on, there are always some who will argue that even children on the other “side” are legitimate targets, better off dead than living long enough to become threats themselves.
But the readiness with which some speak openly these days about “glassing” whole regions of the world, or of marking out some tribes of the species as irredeemable “monsters” better off eradicated in full, should come as no surprise. Abrahamic literature, a cornerstone of Western canon, is filled with ethnic cleansing in the name of YHWH/Jehovah/Allah. So too is Hindu text and Chinese history (albeit to gods and secular glories all their own). Civic life in general is rife with claims to righteous slaughter.
What is extraordinary is not our routine willingness (if not eagerness) to deny the humanity of our fellow human beings.
It’s that, in the midst of so brutal and mythologically sanctioned a history of slaughter, we humans have ever imagined and sought out something better at all.
I still stand by that sense of wonder.
In the last few months, I’ve seen many people perform indifference to others’ suffering—and even weaponize it, going out of their way to boast online about how little it matters to them. I understand that many think this is important to their notion of righteous struggle. I understand that this is how many think they’ll “win” a better world in the end: by performing fealty to one group so much, and to such an extent, that every other human life ceases to matter.
This is as horrific a behaviour as it is normative to our tribalist species.
What’s extraordinary, then, is whenever we humans have pushed to expand the circle of care, the notion of whose life matters, despite all instincts to the contrary: all the small-c conservative pressures to batten down the hatches around a select few.
But there were facets of the story I didn’t get into, in that piece.
And the bolded section above alludes to some.
The problem, at its heart, is that the state is a terrible arbiter of its own moral action, because it always has to measure the acknowledgement of transgression against any liability such a statement would create. A “crime” is a legal instrument: a definition of an act that only holds weight within a formal context that can name and ascribe rights and obligations to victims and perpetrators of it.
In 2015, for instance, Canada’s Truth and Reconciliation Commission concluded that Canada was guilty of cultural genocide against Indigenous people: the “destruction of those structures and practices that allow the group to continue as a group”.
But the real clincher was when Prime Minister Justin Trudeau explicitly used the word “genocide” in an acknowledgement of another report into ongoing suffering in Canada’s Indigenous community. When he said that “what happened [to missing and murdered women] amounts to genocide”, he invoked a legal term, with legal consequences as an extension of international law.
And the risk of legal consequences isn’t just part of why it took so long for the state of Canada to acknowledge what it did to Indigenous groups.
It’s also the reason we have the international definition of “genocide” we do in the first place—and not the more expansive one first crafted by Raphael Lemkin, the Polish law professor of Jewish descent who is touted as the father of the term.
Canada, along with quite a few other Western states worried about the legal ramifications of the term back in the 1940s, was very much involved in limiting the reach of UN definitions then under consideration.
And we’ll get into that today, when we reflect briefly on Lemkin’s ideas, and on what happened during the push to establish a new international standard of human rights.
But it first merits stressing this one, difficult point:
A state is not a person, even if it can and does do harm to many people.
At its best, a state can represent a body politic: a sense of the collective will of its people. But it is always dangerous to present the idea of the state as having a life of its own—and a moral life, especially.
At its best, a state is shaped by direct and thriving, pluralistic democracy.
But our world is never at its best. Every country’s citizens find themselves constrained in their voting options, and horrified by some of what the state does in their name.
And you will never contrition from a “state” for any of the damage that it does.
You will get formal apologies from state representatives, perhaps, issued either under duress after periods of intense military conflict, or at whatever moment is deemed safest for the legal and economic consequences of such an admission to play out.
But a “state” is never sorry.
Nor should we ever expect it to be. “Sorry” is the natural state of human beings, trying to get by with the cleanest consciences we can in a relentlessly dehumanizing world.
Lemkin’s more expansive view of genocide
In a 1946 issue of The American Scholar, Raphael Lemkin advanced his reasoning for the use of the word “genocide”, and why it required a new legal dimension: a formal definition, a treaty, and a range of international enforcement tools. As he wrote,
Genocide is the crime of destroying national, racial or religious groups. The problem now arises as to whether it is a crime of only national importance, or a crime in which international society as such should be vitally interested. Many reasons speak for the second alternative. It would be impractical to treat genocide as a national crime, since by its very nature it is committed by the state or by powerful groups which have the backing of the state. A state would never prosecute a crime instigated or backed by itself.
But even though he knew that international oversight was required, Lemkin noted how difficult it was to maintain such things when they were needed most. Speaking of the world’s limited access to local information during World War II, he wrote:
Only after the cessation of hostilities could the whole gruesome picture of genocide committed in the occupied countries be reviewed. During the military occupation unconfirmed rumors about genocide leaked out from behind the iron curtains covering enslaved Europe. The International Red Cross was precluded from visiting occupied countries and gathering information about the mistreatment of the civilian populations. It so happened because the Geneva Convention gave to the International Red Cross the right to supervise and control only the treatment of prisoners of war. A paradoxical situation was created: men who went into the battlefield with a considerable expectancy of death survived, while their families, left behind in supposed security, were annihilated. The author of the present article has proposed in his book Axis Rule in Occupied Europe that international law be changed so that in time of war the treatment of civilian populations will also be under supervisory control of an international body like the International Red Cross.
Lemkin didn’t come to his thoughts on atrocity from World War II alone, though.
As a child, he was struck by ancient stories of mass murder, and atrocities led by sitting emperors. How could a leader do such things with impunity? But it was the slaughter of some million Christian Armenians by the Ottoman Empire that most acutely piqued his interest in the moral gap in our societies. In 1921, a man named Talaat Pasha was assassinated by Soghomon Tehlirian, and in 1926, Symon Petliura was assassinated by Shalom Schwarzbard. Pasha had been minister of the interior in the Ottoman Empire in 1915: the central planner of the atrocity against Armenians. Petliura had coordinated a pogrom of thousands of Jewish people in Ukraine. Their assassins—people whose family members had been murdered in those state actions—were put on trial. But where had been the trials for these state officials? Why was the murder of one so much easier to prosecute than the murder of thousands, or a million?
This has always been our challenge, when trying to rise to the level of universal justice. How on Earth are we to imagine an appeal to any higher moral authority, when trying to protect “nations” of men from the states to which they—and we—are all party?
Lemkin struggled in the 1920s to find the right language and centres of legal authority from which to launch a formal argument for the defence of racialized and other ethnic groups from state oppression. From late 1929 on, he started drafting language to advance those arguments in international legal forums. In 1933, in Madrid, he called for an international ban on the destruction of national, religious, and racialized groups, but the League of Nations would not vote on it.
In 1944, in his Axis Rule in Occupied Europe, Lemkin then introduced the word “genocide” in its first formation:
By ‘genocide’ we mean the destruction of a nation or of an ethnic group. This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing)…. Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.
This led Lemkin to the very ambitious definition of genocide that we find in his 1946 article, “Genocide”, in which he again proposed the establishment of an international treaty and attendant bodies for the enforcement of such law. As he argued:
The crime of genocide should be recognized therein as a conspiracy to exterminate national, religious or racial groups. The overt acts of such a conspiracy may consist of attacks against life, liberty or property of members of such groups merely because of their affiliation with such groups. The formulation of the crime may be as follows: “Whoever, while participating in a conspiracy to destroy a national, racial or religious group, undertakes an attack against the life, liberty or property of members of such groups is guilty of the crime of genocide.” The crime so formulated should be incorporated in every national criminal code of the signatories.
And so, you can maybe start to see why Western states, while on the one hand highly motivated to craft grand new international contracts in the wake of the horrors and upheavals of World War II, were also very nervous about where this would lead. Under such a broad definitional scope, wouldn’t most states be legally culpable for acts of genocide against groups they had displaced, suppressed, or killed?
In Lemkin’s autobiography, a striking exchange during postwar negotiations highlights how skittery world powers were about the ramifications of this new term:
As the day of the discussion of the Genocide Convention at the Economic and Social Council approached, it was important to anticipate the opposition’s arguments. The British delegation did not hide its hostility. First they criticized the term “genocide” because it was formed of the Greek “genos” and the Latin “cide”; they talked about being allergic to hybrids, and in answer I cited other hybrids, such as “bicycle,” which is composed of the Latin “bi” and the Greek “cyclone.”
In vain I tried to convince them that the Greek “genos” was broader in meaning than the Latin “genus.” I quoted in vain Plato’s use of the term “genos” to describe spiritual or religious groups. It was of no avail. They answered that, formally, we already had the Nuremberg Judgment and that this could eventually be codified to cover the need. “But gentlemen,” I answered, “the Nuremberg Judgment applies only to aggressive war and not to every kind of war, not to a defensive war. Aggression was not at all defined in Nuremberg.”
“In this vein,” I pleaded, “you cannot have the lives of nations on vague formulations. Crimes committed during a war are always pardoned after the war because war, a product of hatred, must naturally be forgotten since hate cannot endure forever. But the life of nations is too valuable to put it into an old boat with big holes floating on the stormy seas of world politics.” Some members of the British delegation saw the validity of my reasoning. But they would not move an inch. This convinced me that they wanted a vague formulation so that it could be applied whenever convenient. I told all this to my new Australian friends while sitting in a comfortable chair on this memorable day in the Palais de Nations.
There were many sections I might have cited from this potent read, but Lemkin’s described interaction with the British delegation—representing a country with much to lose if a fuller definition of genocide were to come to past—was especially rich. Of course the British would first get into an argument over linguistic pedantry, when really the whole point of dithering was to avoid the legal dangers of concrete terms.
(This is also why it should come as no surprise that Cuba, India, and Panama were the countries that first advanced an international petition for the study of genocide in 1946, as I noted in “The Word Games We Play with Atrocity”. Countries more on the receiving end of colonial designs at the time, whether from the US or UK, were much more open to seeing legal language codified around these crimes.)
Not that Canada was any better, mind you. Another key part of Lemkin’s definition of genocide, as described in his 1944 book, reads as follows:
Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after the removal of the population and the colonization of the area by the oppressor’s own nationals.
Gosh, that sounds familiar.
But then again, I grew up learning about how the eradication and assimilation of First Nations, Métis, and Inuit was an overt state project for Canada: ranging from violence and weaponized disease in early settler days, to the nightmare of the residential school system, to the explicit choice by our Aryanist first Prime Minister, John A. Macdonald, to prompt a famine among Indigenous persons, as a coercive tactic to force a treaty with them on state terms.
In 1920, Duncan Campbell Scott, the Deputy Superintendent General of Indian Affairs, even flat-out told Parliament: “I want to get rid of the Indian problem. I do not think as a matter of fact, that the country ought to continuously protect a class of people who are able to stand alone. … Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic.” This speech was uttered as he was changing the Indian Act to force all Indigenous children between the ages of 7 and 15 to attend residential school, where their heritages, their dignities, and sometimes their whole lives were stripped from them.
It is no surprise, then, that then-foreign affairs minister Lester B. Pearson (later Prime Minister) approved the following diplomatic cable sent to the Canadian delegation involved in 1948 UN deliberations on the Genocide Convention:
You should support or initiate any move for the deletion of Article three on ‘Cultural’ Genocide. If this move not successful, you should vote against Article three and, if necessary, against the Convention. The Convention as a whole less Article three, is acceptable, although legislation will naturally be required to implement the Convention.
(The following research comes from a wonderfully comprehensive article by Robert Hiltz of The Maple, which also rightly recommends William A. Schabas’s Genocide in International Law: The Crime of Crimes (2003) for a fuller account of the debates surrounding the drafting of this Convention.)
The legal weight of genocide
For all this diplomatic tension, though, the resulting Genocide Convention still managed to be surprisingly open-ended. Not as expansive as Lemkin and others in his wheelhouse wanted, to include a wider array of cultural acts of assimilation, but… well, take a look at its core components for yourself:
Article II
In the present Convention, genocide means 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.
But here’s the real clincher:
Article III
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
Article IV
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
In other words, direct and public incitement to commit genocide, whether by a state’s leader, other public officials, or average citizens… is just as open to prosecution as the killing of members of the group, the stealing of children, and the deliberate infliction of conditions of life calculated to bring about whole or partial ruin to the society.
At least, that’s what we’ve got on paper.
But this, alas, raises the most important question:
How much is that UN “paper” worth, in practice?
In practice, states like Canada took their sweet time with internal review and ratification processes around the Genocide Convention, precisely because of the legal vulnerabilities this Convention posed for the state.
We ratified the 1948 document in 1952.
We didn’t fully codify genocide in Canadian law until 2000, with our Crimes Against Humanity and War Crimes Act.
And the International Criminal Court, dedicated to prosecution of related cases, wouldn’t launch until 2002, on the back of a Rome Statute that didn’t come about until 1998, in a UN vote with 120 states in favour, and seven in opposition: China, the US, Israel, Qatar, Libya, Iraq, and Yemen.
All of which is to say that even though Lemkin is treated as the father of the term “genocide”, what he actually represents is an agony of a century-long struggle, still very much ongoing, to put the language of atrocity against ethnic groups into legal formulations that states will ever accept, let alone allow to be implemented in full.
Because, again, states are not moral actors.
We are—sometimes.
But states will always prioritize territorial and economic livelihood over any serious and sober reckoning over the harms we do to one another.
And so, we are always going to be living with that same pain Raphael Lemkin felt when he first read histories and newspaper articles illustrating our species’ inability to act with moral courage when faced with human suffering at any scale larger than a single life or tribe. He saw that atrocity can and should be talked about expansively—even if doing so puts us all under the microscope, and compels us to accept that there are many ways for states and their immediate actors to do irreparable harm.
But as any “good” lawyer will advise their client-state today:
“Eh. Be careful what you put on record—and for the love of your financial and formal future, don’t sign anything that might open you to further investigation first.”
Be well, be kind, and seek justice where you can.
ML