An Essay Against
or why the convention on genocide hasn't worked
by John Bart Gerald
On the Convention against Genocide
To prevent the worst crimes, a set of principles was made law, to restrain leaders and those that serve them, and each of the people, from the worst crime by the stronger against the weaker.The Convention on the Prevention and Punishment of the Crime of Genocide, was adopted unanimously by the General Assembly of the United Nations on December 9, 1948, signed by the United States November 12, 1948, and ratified by the United States on November 23, 1988. With the Convention theoretically applicable in U.S. Courts, Americans become liable to "complicity" under international law, although U.S. "Reservations" and "Understandings" at ratification make it as difficult as possible to apply the Convention to the U.S. government.
The "Convention on Genocide" clearly states that genocide is "a crime under international law," and that the signing nations will prevent and punish it (Article I).
Article II defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical (sic.), 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."
Article III lists acts which are 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 specifies: "Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished whether they are constitutionally responsible rulers, public officials or private individuals."
Article V requires each signing nation to put the Convention into effect within its own legal system.
Article VI states the crime will be tried where it was committed or by an international tribunal acceded to by nations party to the Convention, who accept its jurisdiction.
Reservations and Understandings
Of the specific "Reservations" and "Understandings" which the United States made when ratifying the Convention, each accommodates the U.S. refusal (except where it wishes) to cede authority to the International Court of Justice, despite the fact that the International Court of Justice is the legal court of the United Nations.
The first U.S. reservation states that any case "to which the United States is a party," cannot be submitted to the International Court without specific U.S. consent. The second reservation insists: "Nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States." The United States reserves the right to decide whether, when and how, the "Convention on Genocide" can be applied to itself.(*1)
The difficulty with a country placing itself beyond or above international law is that eventually a community of nations asserts a more valid sense of justice, economically, militarily, and eventually through law. When the U.S. breaks international law (ie. the mining of Nicaraguan harbors) subsequent submission to the International Court of Justice becomes more difficult.
Until the U.S. with all other nations accepts the International Court of Justice or its successors, as a judicial power beyond its own self interest as a nation, there will be little chance for a just world peace.
When the U.S. government claims to be beyond the reach of a world court, this directly affects the "Convention on Genocide" and other covenants of human rights law where the U.S. position makes specific reservations to allow for the death penalty within the U.S., or to allow the incapacitation of prisoners, which international human rights treaties forbid. U.S. government reservations to the "Convention on Genocide" similarly suggest that someone has thought very carefully about how the Convention might limit foreign policy options. The "Reservations" provide loopholes which seem made for actions like the Gulf War.
A number of other governments have also made reservations which limit the Convention's applicability to themselves, while recognizing that international law seems to fall to the interpretation of European-U.S. interests. A number of U.S. allies ((ie. Australia, Belgium, Brazil) have concurred with U.S. reservations but not with those of possible adversaries, and in a sense the Convention becomes an international political football. However Denmark, Finland, Greece protest the U.S. reservation #2 as invalid under precepts of international law. Greece also cannot accept the first U.S. reservation. Ireland will not accept the second. Italy accepts neither. Mexico accepts neither. Because of the U.S. reservations the Netherlands states that it doesn't consider the U.S. a party to the Convention.
Norway finds the second reservation contrary to principles of international law. Spain expects the U.S. government to maintain the original provisions of the Convention, anyway. Sweden objects to the U.S. second reservation. The United Kingdom does not accept the first U.S. reservation and objects to the second. In short, the reservations are considered by many nations as abrogations of the U.S. commitment to the Convention.
Although one nation might make abrogations to a treaty, a court of humanity might not find them legally acceptable. In signing the Genocide Convention, the U.S. cannot be both the signee and ultimate judge of the law's applicability.
Common sense would suggest that the objection by the Netherlands is correct. The Statute of the Permanent Court of Justice (1945) claims within its jurisdiction "all matters specially provided for in the Charter of the United Nations or in treaties or Conventions in force" (Article 36.1.). Article 36.6 states: "In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court." There simply is no other world court to decide except possibly victors' courts set up by the U.S. as it extends attempts at world domination. The other objecting nations are simply affirming the right and necessity of the International Court of Justice as the interpreter of international treaties. By refusing to submit to the International Court of Justice's possible interpretation of the "Convention on Genocide" the United States is in effect, denying its own participation.
So a tension is created, where the U.S. government must rely ultimately on force, its military advantage within a world entirely concerned with economic advantage, while any just world peace is only possible if the United States as well submits to a higher court.
Principles of communism tried to show humankind that all the workers' interests are essentially the same. An elite cannot control a united people, and it was the controllers job to divide and set people against eachother, to make history as it has always shown itself to be - the cycle of victor and vanquished.
Most historical injustices are mechanisms of dividing peoples so the rulers can control them. Opposing leaders have more in common with eachother than either has with the people.
For the liberation of humankind from cycles of victor/victim which cause continual suffering, a people's ethic has evolved where portions of humankind place some limits on themselves. Yet most laws and their application are made and enforced to establish or maintain the power of a ruling elite. Under capitalism, laws protecting the people's interests become limited by economic interests of those with power.
Beyond the uses of the laws by the political system there are still laws, deep and sure in each person, each parent, child, worker, soldier, and prisoner as well. All have codes of what is acceptable and not. Some human behavior is unwise in any instance, and so there become human laws which are stronger than legal systems because they represent the shared experience of humanity rather than laws protecting property or privilege.
Beyond legal systems, class, race, and the demands of faith, there remain tenets of common decency.
The body of laws which most accurately represents the needs of people are human rights laws. But the application of any civil or human rights law remains a political issue, often enforced as a control only when convenient.
After the glut of bloodshed at the end of World War II, with the founding of the United Nations and need for world peace, the Convention against Genocide became the primary human rights prohibition, not an affirmation as "the Universal Declaration of Human Rights" is, but a treaty with provision of recourse and judgement of punishment for any transgressor. Because the treaty should protect the vulnerable against the powerful, and placed limits on what the powerful could do with any group of the people, it became a threat to kinds of pragmatism which power contemplates and the people realize late. By the rejection of Nazi Germany's liquidations of peoples, by recognizing that all laws of human decency were broken, the political and legal recognition of genocide as criminality was a victory for all peoples, affirming human rights as opposed to any government's or ruling power's.
The strongest resistance to genocide may in fact be the matrix of a true democracy, and within it compassionate cultures with literary and artistic traditions that question everything yet insist on humanity. But political stability alone risks the effect of genocide by economic deprivation of minorities.
Countering genocidal policies is difficult within "controlled democracies." There is no guarantee that the majority of people within a semi-democracy won't agree to commit genocide, or countenance it by the uses of their military. This is one reason the Convention against Genocide is necessary as a preventive and applicable law.
The most effective political resistance to genocide is preventive, providing a strong code which precedes and supercedes all other laws, and policies. ie. primary law, which the Convention against Genocide is. Once recognized and established as primary law, then all other laws and treaties would occur within its perspective.
The Convention against Genocide does supersede the legal systems of all countries because the legal systems may function whether a genocide occurs or not.With the rise of Nazism in Germany the legal system prepared for genocide by enforcing new laws which specifically deprived Jews of property, ability to function in partnerships with Aryans, etc.. Even in "democracies" laws risk being selectively applied. When the legal system goes awry, as U.S. law has in allowing the death penalty, it is finally answerable to humanity at large.
Despite the rather isolated U.S. "Reservations" with their "Understandings" at ratification which limit its applicability within the U.S., internationally the Convention applies to individual citizens regardless of position or empowerment. The U.S. government cannot under the treaty, legally prevent the prosecution abroad of any U.S. citizen for the crime of genocide, while U.S. "Reservations" abrogate the Convention by giving grounds for legal defense within the U.S. to those engaged in genocidal policies.
In other words, within the U.S. citizens are discouraged from concern yet under international law are liable. Domesticly individuals are denied any way to affect this issue in international court. The Convention against Genocide is a treaty between governments. So the citizen is vulnerable to paying for his/her government's policies beyond U.S. domains of power and influence. Genocidal policies by government put future generations of Americans at risk of retribution. If the U.S. does not maintain its controls internationally which apparently require oppression, then U.S. citizens can be made accountable. In this way crimes by government perpetuate a cycle of injustice implicating every citizen. Still the Convention's prohibition of complicity provides moral and political support and possibly legal grounds to insist on what our consciences know.
Like other human rights laws which are heavily violated, the Convention may fall in and out of international judicial favor. And whether it is applicable or not within any judicial system, by applying to the individual's responsibility, it has both legal and prohibitive effect. If transgressed, it is one of the few laws that can bring down an administration or a government simply through assertion of the people's rights.
If the world court truly represented all nations, all peoples, and economic classes, the U.S. and other super powers would have to submit to it. In as much as a world power commits what humanity considers crimes, that power will have to control the world court or refuse its jurisdiction, denying all peoples justice.
There is the choice of two futures for the world court.
Either there will be representative justice, impartially applied, or international law and institutions of "the new world order" will shield the enslavement and controls of the powerless and poor.
At present, the world court offers little defense against genocides, because these have taken place with the cooperation of the most powerful countries who established the Convention and control application of the law. Examples: U.S. acquiescence and military support to Indonesia's takeover of East Timor involving the eradication of as many as 200,000 people by 1994; the Gulf War, involving the tactical destruction of Iraq's civilian infra-structure by the U.S. and Coalition, and their invasion of and massive bombing of a sovereign nation which had an arguable case under international law.
Structural Impediments to Recognizing Genocide
Nations weren't forced to sign the Convention against Genocide, or to ratify it. Most have, because the treaty affirms the intention of a government to work within principles of law that protect entire groups of humanity at their moments of vulnerability. By applying to everyone it extends a legal responsibility for this concern to the individual.
The individual's human responsibility, is to try to counter genocide when it occurs, and in all instances the individual is legally bound to not cooperate. But for most Americans in 1994 the primary difficulty in opposing genocide is not the military or police controls of dissidence, but the recognition of a situation as genocidal.
One of the difficulties in raising consciousness about current forms of genocide, is that crimes by government are protected by the establishment of elites who become bonded by their risk of eventual prosecution.
In the 1960's, the assassinations of two Kennedys, King and Malcolm X, allowed genocidal policies to occur or continue. Because the assassinated leaders were messengers of inclusion, as opposed to the exclusions from human rights which lead to genocides, American defenses against genocide were damaged. Assassination of leaders whose promises innately countered genocide, suggest there was and remains in the U.S. policy management which doesn't mind genocide at all.Ratification of the Convention itself took forty years.
Even at Ratification, U.S. "Reservations" and "Understandings" allow continuation of genocides as tactical foreign and covert policy. During World War II, Roosevelt made clear to the American Jewish community that saving European Jewry was not a primary war aim. Following World War II acceptance within U.S. intelligence, military and scientific communities, of former Nazis and collaborators, the access to upper levels of NATO by former Nazis, the political usefulness of the Nazis' hatred for communism, helped shift the U.S. and European perspective of what is acceptable thinking to acceptance of genocidal policies within defense, nuclear, and scientific communities (and so within universities and research and business communities). So that the awareness of genocide as an aspect of any domestic or foreign policy was left to others.
Examples of genocide within U.S. history are common enough not to be considered remarkable or even genocide. Among historic crimes which are not commonly called genocide: the destruction of North American Indian peoples, the liquidation of six million Brazilian Indians through the policies of multi-national corporations, effects of U.S. economic and military policies on the poor throughout the Americas, the Euro-American slave trade and subsequent treatment of black Americans, and the fate of the American poor. An argument can be put forward that President Truman's decision to use the atomic bomb twice on Japan, or the effect of defoliation on Vietnam was genocidal.
Another difficulty: genocide is usually committed against poor people and those without legal representation, or against a minority group which becomes the object of the majority's attacks. In this sense democracy fails if it defaults on international laws. The will of the majority within a region is not always right, or legal, which is one reason for the necessity of an effective law to prevent genocide. Civil rights laws provide some protection domesticly but do not extend to foreign policy consideration of non-Americans.
Another difficulty is that U.S. foreign policy seems based on the perpetuation of genocide. The elders of each generation guilty of genocide, involve the next generation in genocide so that those still unscarred by war and horror, will not become sudden moralists and put their elders in jail. This may be why wars recur every twenty years. Former Nazis in the physics lab would not have been as easily tolerated by the postwar generation of Americans were it not for Vietnam, a war that escaped its own genocidal aspect only in the daily press. Policy makers of the Vietnam war, with their policies mired in deceits such as the Gulf Of Tonkin Resolution, may have been inclined to approve a criminal war, to cover their decisions with fresh blood in the Gulf. This may be a tacit fulcrum of contemporary military thinking.
The first obstacle to raising the issue of genocide within the United States is that the Congress, though it ratified the Genocide Convention in 1988, has not set up the means to effect it judicially within the United States, as provided for by Article V of the Convention. When the Nuremberg defense has been raised by radical pacifists such as the Plowshares groups in the United States, judges have usually refused to allow any appeal to conscience which touches on the issue of preventing greater crimes.
Whenever the word "genocide" becomes a public issue, it is co-opted by the government to apply to the policies of a current "enemy", deflecting its intention. Unpursued claims of genocide against Iraqi leaders helped cover the damage to civilian populations by the devastating effects of U.S./Coalition bombing, and failed rebellions encouraged by the U.S. President.
In summary, one reason for the lack of application of the Convention is that so many nations have historically participated in genocide, and continue to, calling it by other names, or looking the other way. It isn't likely that the Convention can be enforceable except against militarily or economically weak nations, and essentially those without protection from mightier governments, unless a number of nations can reach a consensus to allow at least action at the World Court.For now, hope for the Convention and its affirmation is in its principle, which can be insisted on until the various nations of the world bring their militaries and foreign policies within its perspective. The Convention's essential modern problem is that it provides no legal way for ordinary citizens or groups to bring their own governments to account at World Court. When the Convention against Genocide is applicable, when governments rule within its perspective and limitations, then there may be world peace with justice.
While principles of communism supported economic equalization, those of capitalism support economic warfare. Under capitalism, foreign policy supports the interests of the nation's dominant economic class.
Our economic system thrives on genocide. Corporate capitalism may simply be legitimized genocide by economic means. Because multi-national corporations often are the world economy, it is hard for governments seeking to be viable in the world market, to raise the issue of genocide at international law. How can one protest the destruction of entire cultures by economic imperialism when that was exactly the point of the colonialism which built Europe's wealth, and of the pax americana intended to sustain America's own. Those without ethics no longer sell beads to the Indians, but rockets and missiles to "underdeveloped countries," where the arms kill off as many poor people as possible.
Capitalism frequently involves the imposition of capital (the power of an elite) to "develop" which has meant to control and subjugate, the resources of less technologically advanced countries. What resulting indigenous poverty means and leads to is gradual eradication and loss of peoples.
There is little evidence that capitalism itself can present any resistance to genocide. If the Convention against Genocide were active as a criminal procedure it would for example, attack the denial of the right to do business, which is a people's right to survive economically, of countries in political or religious opposition. In 1994 consider U.S. policies toward Libya and Cuba, as well as NAFTA's effects on the poor within the Americas. The concept of Western hegemony which does not claim to have the intention of genocide, has genocide as its effect. Whenever a policy expressing the will of the powerful with a racial and cultural bias, is enforced, its result is at least partly genocidal.
If U.S. foreign policy were considered within the context and perspective of the Convention against Genocide, if people were sensitized to the Convention, then genocides could be avoided. Certainly U.S. policy makers are aware of the Convention since they have already parried its intent with the "Reservations", tactical maneuvers to sustain policy while protecting themselves.
In order to have some idea as to their representation of the people's will and their legality, each foreign policy decision should be subjected to the Convention's prohibitions as if the U.S. were not the most terrifyingly armed nation in the world, a status that may change.
Within the perspective of the Convention against Genocide, the U.S. policy against Iraq and U.S./Coalition actions of the Gulf War were a continuing nightmare. An air war against a people with no appropriate air defenses, and against troops who did not fight back ? The legality of the U.S. position relied on its "Reservations" to the Convention, collusion, threatening and bribing other nations of the U.N., and a familiar arrogance of power.
The military strategy of the war against Iraq involved a purposeful attempt to destroy the country's life support systems and the economy. Its goal was "post-war leverage" and an attempt to make life so intolerable for the people that they would overthrow their leadership. Trying to destroy leadership by destroying a civilian population is genocide. If half a million to a million Iraqis die(d) directly, indirectly or from "Sanctions," as a result of the Gulf crisis, to possibly 125 deaths within American forces, then that was not warfare but a policy of extermination.
Simply, terrible amounts of weaponry were used against a people which could not defend itself. The U.S. and its Coalition foresaw this having supplied Iraq with most of its armaments. As a crime it differs from previous genocides in that it is the first committed since the Convention against Genocide was ratified and genocide was accepted by the United States as a punishable crime at home.
Who would destroy a people and portions of an ancient civilization as punishment for a crime committed by their ruler ? The "civilized" world's ethic of how humanity must treat humanity was broken so severely that the normal fabric of resistance to unjust war was disassociated in both Europe and the United States.The language of peace became the language of violence, the L.A. riots, the "ethnic cleansings" in what was once Yugoslavia, the ambivalent forced feeding of Somalia crippled by cold war policies. After the Gulf War a Haiti became comprehensible, a Rwanda. The difficulty with historical crimes is that they are no longer "political" or even strictly legal issues. The subsequent rationalization of the Gulf war due to Iraq's chance for nuclear capabilities could be applied to almost any country in the world which challenges U.S. and European economic policies. So the Gulf War was in a tactical sense, an international act of terrorism, helping to impose a psychological control on all countries. It was also a terrorization of the American people.
The departure from the norm in what happened in Iraq, is that genocide was apparently used as a conscious military tactic, was accomplished primarily and directly by the U.S., was/is of substantial proportions, and was engineered to make effective domestic and international legal protest impossible.
The American civilian population was so thoroughly messed up by the brutality of its leaders that the crimes of the war were entirely suppressed by the media. Because the Convention against Genocide was not even discussed as applicable to the U.S. and Coalition's attempted destruction of a third world country, and because genocide is never an isolated act but rather a symptom of direction, there is no assurance that it won't happen again. In a U.S. dominated "new world order" opposition to the crime of genocide committed by U.S. government policy, relies increasingly on the people's ability to resist the unacceptable.
Strengthening the Convention
It would help to clarify, update, and strengthen the "Convention on Genocide"
in four respects:
1. The Convention's definition of genocide might need expansion to include all groups specifically targeted by policies which lead to the destruction of any delineation of humanity. Groups formed by common gender, sexual preference, profession, political convictions, economic class, or sect within religions might be specifically included.
2. The Convention's applicability could extend more clearly to the economic policies of companies and nations, particularly when the effect of policy is to destroy existing cultures, to make them reliant on foreign products, or require military takeovers or incursions. Where profit motives with projected risk can be equated with the "intent to destroy" a people (Article 1), when governments or corporations with products such as nuclear energy endanger the people at large, they should be held accountable to the Convention.
3. Chemical, biological, or radiological warfares might be specifically included as innately genocidal. Each denies humanity by its inability to discern innocent from combattant, yet has the potential for destroying entire groups. In particular nuclear or radiological warfare involves the possible destruction of entire peoples, and the future.Without a strong Convention against Genocide a primary legal restraint to nuclear war is removed and the unacceptable becomes a tactical possibility.
4. Provisions might be made for the people to apply the Convention directly to their own leadership and policy makers.
Or possibly as it stands, the Convention encompasses these.
The "Understandings" are:
1. That the term 'intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such' appearing in article II means, the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group as such by the acts specified in article II.
2. That the term 'mental harm' in article II(b) means permanent impairment of mental faculties through drugs, torture, or similar techniques.
3. That the pledge to grant extradition in accordance with a state's laws and treaties in force found in article VII extends only to acts which are criminal under the laws both of the requesting and the requested state and nothing in article VI affects the right of any state to bring to trial before its own tribunals any of its nationals for acts committed outside a state.
4. That acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention.
5. That with regard to the reference to an international penal tribunal in article VI or the Convention, the United States declares that it reserves the right to effect its participation in any such tribunal only by a treaty entered into specifically for that purpose with the advice and consent of the Senate.
- According to "Multilateral Treaties deposited with the Secretary-General." Status as of 31 December 1992.United Nations, New York.
Exclusive of quoted material, Copyright © 1995, by John Bart Gerald
First published, peacemedia news (Netherlands) 1995
Published serendipity (Switzerland, USA, Australia) 1997
Author posted (Canada) 2000
Posted Gerald and Maas Night's Lantern 2002
gerald and maas