Acting before victims become victims: preventing and arresting mass murder.

• Author: Reisman, W. Michael
• Position: International Conference in Commemoration of the Sixtieth Anniversary of the Negotiation of the Genocide Convention

Whoever saves one life earns as much merit as though he had saved the entire world.

Talmud Yerushalmi, Tractate Sanhedrin 4:5

To save one life is to save all of humanity.

Qur'an, 5:32

Murder, the taking of life, is the ultimate and irrevocable violation of human dignity and, for each individual, the ultimate terror. Because each of us fears being murdered, we all look to our various communities for the protection of our individual lives; Hobbes laid motives of this sort at the very foundation of the state, (1) and H.L.A. Hart saw the inability of even the strongest among us to defend ourselves all the time as an imperative for the existence of a legal system. Even the most powerful person, Professor Hart observed, must sometimes sleep. (2) The raison d'etre of the modern state, and a major purpose of international law, is the provision of security, which means the protection of individual lives.

Yet, for all the urgency that each of us gives to this ultimate and most individualized form of personal security, and for all the intensity of our demands on our governments to guarantee it, there is little that any government, even the most authoritarian and controlling, can actually do to prevent single acts of murderous violence. Democratic governments, which must try to requite popular demands, face special obstacles here; for important policy reasons, they must resist proactive preventions and perforce look to other preventive methods, such as socialization. Socialization is a long-term strategy, cultivated at every level of social organization, that tries to redirect violent impulses into socially approved channels and, in particular, away from fellow group members. The fact that group members continue to murder one another, however, demonstrates that socialization is far from a perfect preventive strategy.

Whether the result of a momentary impulse or of a covert premeditation, murder is accomplished in a single, instantaneous and irrevocable act. By its very nature, no single institutional body is capable of preventing every murder. All any government can do to meet our demand for personal security is to provide some second-best remedies.

One of these remedies involves apprehending the perpetrator after the fact and punishing him via elaborate legal procedures and ceremonies. This may provide vengeful satisfaction to those who loved the victim and the illusory reassurance to the rest of us that, by punishing that particular murderer, each of us has somehow been made safer from suffering that crime. The debate rages over the deterrent value of punishment. But even assuming that ex post punishments do, in some statistical sense, deter the future commission of many of the same sort of crimes, that promise of deterrence suffers from the problem common to the individualization of all statistical projections: there can be no assurance that the punishments--no matter how notorious they may be and how high the statistical probability of deterrence--will deter their commission in our individual case!

In some traditional cultures, a murder can be expiated by the payment of blood money. In the United States, the national community may, under some circumstances, issue compensation for murders. (3) But what prospective victim would look eagerly to compensation as an attractive swap? We want to avoid being murder victims; yet, in terms of community remedies, neither punishment for murder nor compensation to survivors really provides us with what we want. These remedies are mere second-best solutions, which is about the most we can hope to get.

In simple arithmetic terms, mass murders may seem to be merely an accumulation of many individual murders. But in terms of the preferred solution of prevention--an unattainable solution for individual murders--mass murders are different in that many of the individual murders that together comprise mass murder are preventable. Unless a mass murder is accomplished with a single devastating weapon of mass destruction, such as a nuclear bomb or a chemical or biological weapon, the business of killing a large group of people takes time, communication, and organization. It requires assembling the victims and delivering them to the killing grounds, in addition to recruiting, transporting, and maintaining both the killers and their tools. Also, one must provide for the killers' upkeep and arrange logistics, the maintenance and transportation of ammunition, and the disposal of corpses. In sum, there are many gritty details that go into setting about and murdering a great number of people.

Because mass murders are an organized social activity with a temporal extension that increases in proportion to the number of victims, others can quickly verify that the individual murders which have been perpetrated up until that moment of perception are only the beginnings of a series which is going to be repeated until the targeted group is annihilated to its last man, woman, or suckling babe.

This means that, unlike individual murders--the vast majority of which can only be punished after the fact--many of the individual murders that comprise a mass murder can be prevented. Prevention can be accomplished by arresting the killing process as soon as it becomes apparent that mass murder is imminent or underway, thereby restraining the number of victims from expanding and even reaching the totality the perpetrators are seeking. In short, if long-term socialization, punishment, and compensation are all a community can do when confronted with individual murders, those manifestly second-best remedies are not the only thing that can be done for mass murder. Even if the murders at the beginning of the series cannot be prevented and may prove just as instantaneous, irrevocable, and irremediable as any other individual murder, the remaining deaths that together comprise mass murder can be prevented.

Let me be clear: I have no objection whatsoever to prosecuting and convicting murderers, be they individual or mass killers. But if life is the most precious of things, then I ask you, should not acting to prevent before the fact, as opposed to acting to punish after the fact, be the primary technique of international law for dealing with mass murder?

I

Genocide is one form of mass murder that has been considered especially hideous. Yet from the time it was prohibited as a legitimate war strategy and was made an international crime, the global community has preferred to invest its efforts in punishment rather than prevention.

The Holocaust, the systematic murder by Nazi Germany of six million Jews, extended over a span of three years. Hitler declared the "Final Solution" at Wannsee on January 20, 1942, (4) and the physical destruction of European Jewry concluded only with the defeat of the Reich in May 1945. We now know that President Roosevelt and Prime Minister Churchill learned about the genocide while it was being conducted. (5) Declarations of severe punishment for its perpetrators were solemnly issued, but not a single B-29 Flying Fortress was dispatched to either bomb the rail lines carrying victims to the gas chambers or destroy the gas chambers themselves in an effort to arrest the genocide. That was not for lack of resources. At the time, thousands of sorties were dispatched to destroy Dresden, a non-military target.

Instead of making the most minimal effort to prevent notorious and systematic mass murder, the Allied Powers took an easier course: punishment after the fact. Six months after Hitler had taken his own life and the German Armed Forces had issued their Instrument of Surrender to the Allied Powers, the first international war crimes trial was held in Nuremberg. In all, two-hundred war crimes defendants were tried, but only twenty-four members of Hitler's elite circle were prosecuted as "Major War Criminals" before the International Military Tribunal. Twelve men were sentenced to death. (6)

The international human rights movement has celebrated the trials at Nuremberg as a vindication of human rights and as a milestone on the road to installing a regime for international protection. The celebration tends to obscure the fact that no efforts were made to arrest or prevent the genocide that had led to the Nuremberg trials. Nor has the precedent laid at Nuremberg deterred later atrocities in the Balkans, Cambodia, Rwanda, and the Sudan, to name a few. Nuremberg has, however, set one ironic precedent. In each of those mass murders, little or no effort was made to prevent or arrest them; on the contrary, the preferred strategy has always been "Nurembergian"--to wait for the mass killings to play themselves out and then to establish criminal tribunals.

After the trials at Nuremberg, the belated international reaction to the Holocaust was, of course, the Convention on the Prevention and Punishment of the Crime of Genocide. The United Nations General Assembly approved the Convention on December 9, 1948, and it was opened for signature on that day. It came into force on January 1951.

Genocide is defined in Article 2 of the Convention as any of the following acts committed with intent to destroy, in full 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. (7)

Article 3 of the Convention provides that: 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. (8)

Genocide is considered a punishable act, but note the lack of emphasis on the prevention of preventable acts. To be...