Just days after Hamas unleashed its death squads to behead kibbutzniks with shovels, and Israel, with a quick clench of an already tightened fist, began its total siege and terror-bombing of Gaza, the Israeli academic Raz Segal sounded an early warning. Deprived of the essentials of life and denied the possibility of escape, the captive Palestinians of Gaza face a “textbook case of genocide.” Israel’s “genocidal assault,” Segal wrote in Jewish Currents, is “explicit, open, and unashamed.” In the month since Segal’s article, his indictment and prophecy have been taken up as the principal cry of those who demand an immediate end to all hostilities.
At rallies and sit-ins and demonstrations and in countless open letters and polemics, the spectre of genocide has been evoked as a forbidding sanction against the elimination of Palestinian life. Some 800 scholars of human rights (including leading figures like the Israeli historian Omer Bartov and the Turkish historian Taner Akçam) warned in mid-October that an “illegal, potentially genocidal siege” was leading “to an outright destructive assault.” In a furious final letter to his boss before retiring, Craig Mokhiber, the director of the New York office of the U.N. High Commissioner for Human Rights, quoted Segal’s accusation of “a genocide unfolding before our eyes.” A week and a half ago, three Palestinian human rights organizations filed suit with the International Criminal Court, alleging genocide alongside war crimes and crimes against humanity. The aptness and power of the word is reinforced by its absence in the mouths of politicians, who, whether out of cowardice or conviction, refuse to indict their own governments with complicity in the ultimate crime.
Language often turns limp in the face of atrocity. Confronted with a vast catastrophe, we reach for something that can sum up the cruelty of the present. What term is more culturally potent than genocide? By December 1948, when it was adopted by the General Assembly of the United Nations, the Genocide Convention, an international treaty that forbids any “intent to destroy … a national, ethnic, racial, or religious group,” was already embedded in the tapestry of international law as a self-evident good beyond contest. In its concatenation of Greek and Latin, the term itself seems to come to us from deep within the bowels of antiquity. Other crimes—even those proscribed during the Nuremberg trials of leading Nazis by the Allies—sit in the shadow of genocide, and we speak of it with a solemn frown, reverent of its gravity. Genocide is a kind of negative sublime, the ballast by which all other human wrongdoing is measured: something not of this earth, the gravest of deeds, the crime of all crimes.
Of course, it is precisely those ideas that seem obvious and self-evident that deserve to be questioned. It is even more important to do so when they are invoked as a talisman of justice in moments of profound crisis. Look a little closer, and it becomes apparent that genocide is a flawed idea, a compromised theory whose hollow clauses don’t support its moral weight and lead us no closer to justice. The term is somehow too narrow and too ambiguous; its definition is too strict and too indistinct. As a piece of law, the Genocide Convention excuses and exonerates more perpetrators of mass murder than it condemns. It is so full of holes that academics have spent the last 75 years confecting new interpretations to make it work. Genocide is supposed to be a crime so total and unimaginable that only a few other events are allowed to join the Holocaust as the preeminent exemplar of human evil; in this way, it leaves out all the other mass slaughters for which the twentieth century is so notorious. What if, as the historian Dirk Moses, author of The Problems of Genocide, has suggested, “the house of international criminal law was built on shaky conceptual foundations”? What if genocide “is a part of the problem of civilian destruction rather than its solution”?
It was a fluke that the term ever entered the world, and a kind of accident that it became the most serious statute on the lawbooks of civilization. It was invented in 1943 by Raphael Lemkin, a mildly successful Jewish lawyer who fled the advance of Nazi forces into his native Poland and endured an arduous voyage to the United States. Though not an international lawyer, in his 1944 book Axis Rule in Occupied Europe Lemkin sought to fill in what he perceived as a gap in the rules governing the behavior of states. His definition of his own coinage was sweeping: “A coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups.” He imagined an arsenal of techniques that could lead to the ruin of a group: denial of self-government, attacks on its intelligentsia, bans on native language, educational indoctrination, economic exploitation, manipulation of birth rates, and the destruction of a group’s culture (its art, memorials, religious sites, libraries). Mass murder—the physical destruction of a group—was only the most extreme form, and it was entirely possible, Lemkin reasoned, for genocide to take place without anyone ever being killed.
Though he would later try to cover up his personal convictions in an attempt to present himself as an impartial avatar of human justice, Lemkin’s stress on national and ethnic groups was drawn from his decades of experience as a passionate and dedicated member of the Zionist movement. His most basic ideas about nationhood and civilization, his belief in what he mysteriously called the “biological structure” of a potential Jewish nation, and his belief in the eternal problem of antisemitism were formed out of his Zionism and fed directly into his conception of genocide as the end result of a kind of irrational atavism: an apolitical crime of prejudice or, as Dirk Moses semi-sarcastically puts it, a “massive hate crime.” But nations aren’t “biological” entities—they are social and cultural formations resting on a shared mythology of unity and belonging. Religions don’t have a “biological” element either; in fact, a religion would be pretty useless if it denied itself converts and stuck to an ethnic or “racial” basis. From the start, Lemkin conceived of genocide as an exclusive and ethnic crime—not the total and overarching wrong we believe in today.
Lemkin’s book arrived too late to be considered seriously by the Allied prosecutors building their case for the forthcoming trials at Nuremberg. Even when they heard about his idea, they were skeptical, even outright scornful. The British team especially thought the term was “too fancy” and “outlandish” and “couldn’t understand what the word meant.” Regardless, the Allies already had their trifecta of crimes that would be the anchor of accountability in the postwar era: war crimes, crimes against peace, and crimes against humanity. Of these, the waging of aggressive war was deemed the most severe. “To initiate a war of aggression,” the Nuremberg judges wrote, “is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” No Nazi was ever convicted of genocide at Nuremberg; no Nazi was ever charged with genocide.
Here, with Lemkin’s snubbing by the Allies, the story of genocide might have ended: not in defeat, but in dismissal. It could have been just another chapter in just another academic monograph. Except Lemkin, humiliated and embarrassed, never forgave the snub. He described the handing down of the Nuremberg verdicts as “the blackest day of my life”—a peculiar and solipsistic view on a historic moment for international law, and on a judgment that convicted the killers of much of Lemkin’s family. Lemkin’s righteous revenge was to dodge the Nuremberg precedent by appealing to the U.N. General Assembly and the world’s press. He left his law career to remodel himself as an activist and amateur diplomat, writing indignant letters to anyone with authority, even buttonholing statesmen in the Delegate’s Lounge of the U.N.
As Lemkin’s theory found favor with the assembly (especially countries emerging from under the colonial heel) and made its way through the grinder of resolutions, consultations, debates, secretarial drafts, and committee hearings, it was pruned and reshaped into something else. A consensus hardened: Rather than a broad chain of actions and techniques, genocide now described the physical destruction of a group alone. What emerged after 18 months of squabbling, in December 1948, was a stripped-down and strict interpretation of Lemkin’s original concept. The Convention had been gutted of everything that made genocide a unique idea, particularly Lemkin’s notion of cultural genocide (or “vandalism,” as he called it). In this narrower conception of the term, all the artistic, intellectual, and spiritual achievements of a group—indeed, their very history—could be erased and, so long as their bodies were left untouched, such acts would not count as genocide.
Raphael Lemkin went along with the remaking of his idea because he had shackled himself so completely to its success. The Convention had to be ratified no matter the cost to his own intellectual integrity or the thoroughness of his theory. And the costs were high. In his ceaseless lobbying, Lemkin removed “political groups” from Convention drafts, thereby restricting the pool of victims to national, ethnic, religious, and “racial” groups. The consequences were immediate: It was now possible to annihilate a political movement without committing genocide, a fact that proved helpful for the U.S.-backed Suharto regime in Indonesia when it purged and destroyed one million “Communists”; for Mao’s Cultural Revolution in its purge of the “filth” of the “reactionaries”; for the regimes of torture and disappearance in Latin America. The definition worked retroactively too, letting the British off the hook for their murderous colonial police actions, and the Soviets for their elimination of the prosperous peasants they called “kulaks.” Moreover, the most outrageous kinds of ethnic violence could be excused if the killers claimed the justification of political repression, as with Operation Searchlight in 1971, when the Pakistani army tried to brutally put down Bangladeshi demands for freedom and self-determination. Not only were political groups excluded, other minorities were refused the protection of the Convention. During the war, the Nazis had pursued sexual minorities and the disabled with equal cruelty to Jews, Roma, Slavs, and Communists, but that fact did not conform neatly to Lemkin’s national, ethnic, or religious guidelines.
Some of the faults embedded in the idea of genocide were Lemkin’s own; some were the result of his capitulation to the powerful. Britain, the United States, and the Soviets worked hard to make sure the Genocide Convention (or the Nuremberg precedent, for that matter) would not halt the remaking of the world after the Second World War—what Samuel Moyn has called the “brutal peace.” Two doctrines had to be rescued from the Convention’s weak snares: military necessity and population transfer. In the postwar order, people would have to conform to borders rather than borders to people. As the U.N. debated Lemkin’s idea, millions of ethnic Germans were forced out of Eastern Europe, the partition (and parturition) of India and Pakistan caused one of the largest mass migrations in human history, and Israel carried out its takeover of Palestine at the expense of its non-Jewish inhabitants. The complete dispossession and immiseration of an enormous number of people was the sin the large powers (and plenty of smaller nations) swallowed in order to secure the postwar settlement. When “mass displacement of populations” was taken out of the draft Convention under the excuse that it “did not necessarily mean the physical destruction of a group,” the U.N. created a yawning loophole in the crime of genocide.
The Allies also made sure their vast arsenals, their fleets of bombers, and their new atomic weapons could be used on civilians without consequence: The justifications of military necessity and national security would cleanse all sins. “Killing masses of civilians,” Moses writes, “was not illegal if motivated by military goals: victory, not destruction.” In a total war, an entire nation can be crippled by bombs and fire, its environment poisoned, millions of its noncombatants can be slain, to such a degree that it imperils the nation’s existence, yet so long as the perpetrator uses that grotesque euphemism “collateral damage,” there is no genocide. No death toll can appeal against it. Viewed this way, the notorious, muddled, misleading phrase “intent to destroy” begins to look a lot like a get-out clause or an escape hatch for the powerful. Built into the Convention is a seed of its own negation, a critical flaw that works to the benefit of the murderer—just enough cloudiness and imprecision that doubt can easily be thrown on any accusation of genocide. The centerpiece of international law, its strongest supposed pillar, should not be so patchy.
A hierarchy of crimes is not necessarily a bad thing. We know instinctively that murder is a graver act than theft or fraud, so why shouldn’t mass murder be considered graver still? The trouble is that this particular hierarchy of international law, which places genocide above all other crimes, has led to a perverse situation where it becomes ever easier for elites to pursue criminal policies—covert wars, occupations, economic sanctions and blockades, environmental spoliation, population transfers, secret funding of death squads—when they can claim a justification that does not reach the apex of that hierarchy. The belief in genocide as the preeminent crime shadows all those other bits of international law that do prohibit these actions, and in the process makes them less important and less accessible to everyday language. Worse still, we would be outraged if the crime of homicide said that some groups of people cannot be victims.
There is an alternative concept, however: crimes against humanity, which encompass any “systematic attack” on civilians, including mass murder, apartheid, sexual violence, and political persecution. By a strange quirk of history, the inventor of that term, Hersch Lauterpacht, was a Zionist in interwar Poland like Lemkin. They went to the same law school in Lviv, and both had the same essential insight about the need for a single piece of international law to protect civilians. But Lauterpacht’s idea has none of the knots and hang-ups that Lemkin’s does. It is a universal concept rather than an ethnically specific one; it is neat and elegant and can be applied to different kinds of violence—not just physical destruction. Like so many other crucial parts of international law, the charge of crimes against humanity has been overshadowed and pushed aside by genocide. Then again, the idea contains in its name the very thing that is defied when anyone violates it: humanity.
And Lauterpacht never needed to water down his theory. Lemkin, on the other hand, was more than happy to pare back his idea in order to see it enshrined in law. His colleagues were astonished that he was “willing to throw anything and everything overboard in order to save a ship.” If you wanted to be sympathetic to Raphael Lemkin, you would say that his fate was tragic. But tragedy implies thwarted innocence. Until his death in 1959, Lemkin went about his gutting of genocide willingly, single-mindedly pursuing his objective of ratification until eventually he found himself at rock bottom: as an anti-Communist-for-hire, getting into public disputes with the early leaders of the Civil Rights struggle and actively denying the severity of white supremacy in the United States. When Lemkin was campaigning for the ratification of his Convention, he compromised his idea so often and so completely for the benefit of the powerful that he left us clutching a neutered piece of law that does little but protect the unjust.