"Genocide" - the power of a label.

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

I know that I shall meet my fate Somewhere among the clouds above; Those that I fight I do not hate, Those that I guard I do not love; My country is Kiltartan Cross, My countrymen Kiltartan's poor, No likely end could bring them loss Or leave them happier than before. Nor law, nor duty bade me fight, Nor public men, nor cheering crowds, A lonely impulse of delight Drove to this tumult in the clouds; I balanced all, brought all to mind, The years to come seemed waste of breath, A waste of breath the years behind In balance with this life, this death.

--W.B. Yeats, An Irish Airman Foresees His Death

The irony and ethical quandary of those who fight on behalf of others is an age-old riddle not likely to be solved anytime soon. Military intervention to stop genocide, which is unauthorized by the United Nations, is a voluntary, and perhaps illegal, action on the part of states seeking to protect a people not their own. The duty to intervene with genocide, if it exists at all, is murky. The atrocity to be prevented is defined, although that definition is being pulled in multiple directions. Like the airman in Yeats' poem, neither law nor duty may compel action, yet how can the world countenance genocide while it retains the ability to act?

Any state may be faced with the following situation: an unspeakable series of atrocities unfolds in the arid, rocky lands of a far off nation located on an exotic-sounding continent. Mass rapes, deportations, starvations, and ultimately death ensue. The events are terrible beyond description. The international community has not acted. The United Nations is in stasis under the threat of a veto from a permanent Security Council member. Civil war hangs in the air, ready to erupt. Is this genocide? Does it matter? Why?

Those three questions are the subject of this essay. They all derive from exploring the power of labeling a given or unfolding atrocity as "genocide." Politicians, scholars, relief agencies, and distinguished judges at international tribunals regularly agonize over whether to apply the label. Most recently, collective hand-wringing focused on the crisis in Darfur, Sudan. The moral, political, and legal consequences that follow from withholding or applying the genocide label vary with the circumstance, and the effects of applying the label can truncate options for dealing with the situation. One commentator has noted,

The danger of the word 'genocide' is that it can slide from its wider, legally specific meaning, to a branding of the perpetrators' group as collectively evil. Having labeled a group or a government as 'genocidal,' it is difficult to make the case that a political compromise needs to be found with them. This leaves only various forms of pressure, such as sanctions, prosecution in a court of law, and, of course, military intervention. Sanctions rarely work. Prosecution is by definition too late for the specific crime in question. Military intervention is a clumsy tool that runs serious risks of failure and of inflammatory side effects. (1) Parties to the Genocide Convention undertake dual obligations--to punish and to prevent genocide. These obligations, however, are couched in language that significantly qualifies their successful undertaking. The two main tracks of debate today concern, first, the content of the definition and, second, whether a legal duty of intervention arises if the definition is triggered. Academics are more concerned with the former, while politicians are more concerned with the latter.

The definition from the 1948 convention is straightforward. Genocide is:

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. (2)

States are obligated to prevent and punish genocide. (3) As for punishment, the treaty restricts states to self-policing, trying suspects "in the territory of which the act was committed," or turning to the international community. (4) As for prevention, intervention rests in collective action via either the United Nations or the state where the atrocities are occurring, not individual foreign states. (5) It has been noted that "[t]he 1948 Genocide Convention is silent about the means required to 'prevent and punish' the crime of genocide, and it would have been an anomalous anachronism for the member states of the UN to have made an exception to its rule of outlawing aggressive war by specifying that genocide created a duty of intervention." (6)

Nevertheless, if a new norm of humanitarian intervention has crystallized in customary international law, then the Genocide Convention may have been altered to allow for this possibility, especially if genocide is considered to have passed into the jus cogens canon. (7) But even if intervention is possible, the question of whether there is a legal duty or right to intervene remains open. Moreover, this question exists uncomfortably, but necessarily, alongside the reality that demonstrated inadequacies of the international system to respond to genocide create a vacuum for non-U.N. sanctioned humanitarian intervention to fill. (8)

On the question of definitional content, concerns coalesce around expanding or contracting the definition of genocide. If it is expanded to include cultural annihilation or political repression, then the crime becomes more akin to a crime against humanity--the category of internationally criminalized conduct from which it originally sprang. (9) Purists want to keep genocide limited to the most extreme atrocities and retain it as a distinct crime.

These issues are not restricted to current events. Turkey and the United States recently experienced a severe diplomatic breach over applying the label "genocide" to the 1915 mass deaths of Turkish Armenians at the hands of the Ottomans. On October 10, 2007, the U.S. House of Representatives Foreign Affairs Committee passed a resolution labeling the atrocity genocide, despite heavy lobbying from the president not to do so for strategic diplomatic reasons. (10) Before being immediately recalled to Ankara, Turkey's ambassador said that being labeled as precursors to Hitler "is a very injurious move to the psyche of the Turkish people." (11)

It was in the context of the First World War that the tragedy destined to befall the Turkish Armenian population began to unfold. The Ottoman Empire's response to participation by a Christian Armenian division in a Russian-sponsored action against Turkey, as well as the declaration of a provisional Armenian government, was swift and brutal. (12) The Turkish government undertook an "undeclared campaign of genocide against [its] Armenian subjects...." (13) The resulting genocide of the Armenians was organized as a march "into the desert to die of starvation and thirst." (14) This brutal action led to the deaths of approximately 700,000 men, women, and children. (15)

In fact, the Young Turks regime, which had replaced the old Sultanate, used the outbreak of war in 1914 to effect this atrocity as an ultimate solution to the "Armenian question," which had long nagged the Turkish government. (16) Although the process was to be carried out in secret, (17) dispatches from foreign officials clearly reflected the magnitude of what was happening. (18) After the war, Henry Morgenthau, America's Ambassador to Constantinople, recounted:

The final and worst measure used against the Armenians was the wholesale deportation of the entire population from their homes and their exile to the desert, with all the accompanying horrors on the way. No means were provided for their transportation or nourishment. The victims.., had to walk on foot, exposed to attacks of bands of criminals especially organized for that purpose. Homes were literally uprooted; families were separated; men killed, women and girls violated daily on the way or taken to harems. Children were thrown into rivers or sold to strangers by their mothers to save them from starvation. The facts contained in the reports received at the Embassy from absolutely trustworthy eye-witnesses surpass the most beastly and diabolical cruelties ever before perpetrated or imagined in the history of the world. (19) Telegrams from the Interior Ministry collected after the capitulation of Turkey confirmed the government's intention to destroy the Armenian population. Two communications from Interior Minister Talaat Pasha focused monstrously on the destruction of Armenian children:

To the Government of Aleppo, January 15, 1916--We hear that certain orphanages which have been opened receive also the children of the Armenians. Whether this...