Tuesday, July 11, 2006

Genocide & legalism (contd.)

The blogger Dialectical Confusions posted a thoughtful commentary on some issues raised by my own recent post What happened to the Genocide Convention? His questions concerned the definition of "genocide" under international law and the practical implications of the Genocide Convention for the case of Saddam Hussein's Iraq. He began his post, "Point of law", by saying
The following relates to international law, a matter I have no expertise at all in. Nor do I believe that the legality of an action, whether under national or international law, is anything like decisive in regard to its morality.
He and I are in complete accord there.

Essentially, DC asked two main questions: (1) Did the mass murder of Kurdish civilians by Saddam Hussein & his regime in 1988-1989 (or the campaign against the Marsh Arabs in the mid-1990s) actually constitute genocide under the legal definition of the Genocide Convention, or was this merely a case of large-scale politically motivated mass murder? And (2) even if the actions of the Iraqi Ba'athist regime did constitute genocide, would this be enough to serve as legal justification for the 2003 Iraq war?

=> My response was the following:

Dear DC,

Regarding your post, Point of law, about my own item, What happened to the Genocide Convention? ... I appreciate your commentary, which is serious and intelligent. On the other hand, I think it is off the mark in some important respects.

You really make two main points. On one of them, I may have been unclear. I did not argue that the Genocide Convention legally justified the 2003 Iraq war in the precise form that it took. (I believe that the war was necessary & justified for other reasons, moral and legal as well as prudential--for example, see here and here.) You are right that other aspects of international law would raise questions about whether or not the procedure employed in this case met "legal" standards.

What I argued was that, under the Genocide Convention, the signatory governments were under a legal obligation to take some action to "prevent" and to "punish" genocidal mass murder. In the case of the Iraqi Ba'ath regime, none of ever them took or proposed any such action, as far as I am aware. In this respect I agree completely with Juan Cole (among others):
I believe that what Saddam was doing to the Marsh Arabs from the mid-1990s could legitimately qualify as a genocide. Likewise, the Anfal campaign against the Kurds. Although the latter was carried out some years ago the former had been recent and ongoing. Moreover, there is not in most legal systems any statute of limitations on murder, so I am not sure why there should be one on genocide or mass murder.
In short, I believe that the United Nations Security Council was obliged to remove Saddam Hussein from power on the basis of egregious violations of the UN Convention on Genocide
If the Genocide Convention meant anything, the UN Security Council could have authorized action on the basis of the Convention with respect to Iraq ... and also in Rwanda, etc. Of course, there was never the slightest chance of this happening, and we all know it--which is the point.

Your second point has to do with whether the actions of the Iraqi Ba'ath regime, even the 1988-1989 'Anfal campaign in Iraqi Kurdistan, amounted to genocide under the terms of the Genocide Convention.
Firstly, I'm not sure that Saddam is in fact guilty of genocide (as opposed to mere mass murder), even according to the fairly broad definition of the Genocide Convention. Broad as that definition seems to be, the Convention nevertheless stipulates that for the various specified acts to be genocidal they must be "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such".
That "as such" seems to me to be important. Does it not imply that the victims must be targeted because of their nationality, ethnicity etc.? If so, must not one ask: in unleashing terror upon the Kurds, was Saddam attempting "to destroy, in whole or in part" the Iraqi Kurds "as such" i.e. as Kurds - or because Kurdistan and the Kurds were seen as a centre of opposition to the regime? (The same question applies to the Marsh Arabs).
This appears to suggest that we cannot call something "genocide" if it has any instrumental or "pragmatic" purpose linked to political, ethnic, racial, and/or religious conflict. It has to be a purely gratuitous act, intended purely and exclusively to wipe out some targeted group "in whole or in part."

The problem with using this criterion is that, with only one exception, it would exclude all the mass murders of the 20th century that are commonly regarded as cases of genocide. For example, the Ottoman government's campaign against the Armenian minority during World War I had an explicit political and strategic rationale (they were concerned about Armenian nationalism and the possibility of Armenian collaboration with the Russians)--and, while this was clearly not the whole motivation, it was probably part of it. In the case of Rwanda, there was a genuine history of ethnic conflict between Hutus and Tutsis, and the Hutu-supremacist genocidaires justified their operation (which also targeted moderate Hutus in the political, judicial, and intellectual elites) as a strategy for preventing a return of Tutsi domination (which happened anyway). Etc.

It so happens that there is only one 20th-century case of a purely gratuitous genocide--the Nazi effort to exterminate the European Jews, which served no instrumental or pragmatic strategic or military purpose at all. Quite the contrary, it diverted resources from the German war effort. (Yes, Hitler did believe that he was in a genuine struggle with a world Jewish conspiracy, but that belief was purely delusional.) In that respect, the Holocaust/Shoah was unique. So the implication would be that the Genocide Convention has no practical application outside the one case that served as its main inspiration. If genocidal mass murder is carried out for instrumental purposes, as a tool of political and/or ethnic conflict, it cannot legally be called "genocide."

I happen to think that, in substantive moral terms, this would be a perverse and misleading conclusion. At all events, it is clear that the prevailing interpretation of the Genocide Convention by international lawyers does not limit the concept of "genocide" to purely gratuitous extermination with no instrumental elements. The retrospective prosecutions for "genocide" in connection with Rwanda and even Bosnia (where I think that, for a non-lawyer, the term "genocide" really is being stretched) make this clear.

So far, however, the halting and inconsistent efforts to "punish" genocide--in some cases--have not been accompanied by any serious efforts to "prevent" it (except as a by-product of actions carried out for other political and strategic motives, as with the Vietnamese invasion of Cambodia to overthrow the Khmer Rouge ... or the 2003 Iraq war, one side-effect of which was to prevent what would almost certainly have been another genocidal bloodbath in Iraqi Kurdistan after the "containment" of Saddam Hussein's Iraq had collapsed).

Yours for reality-based discourse,
Jeff Weintraub

[Update 7/18/2006: DC has re-responded with another thoughtful and intelligent post, "More law". What he says there makes good sense, and in the end I think he and I are largely in accord on the basic issues.
(I do feel compelled to note that this excludes the points DC makes in the last paragraph of his post, which strike me as misguided and--to borrow one of his terms--excessively "breezy." But those points are peripheral to the main issues we were discussing.)]

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