Reflections on Genocide as the Ultimate Crime
by Alfred de Zayas and Richard Falk*
(3 May 2021) The misuse of the word «genocide» is disdainful toward relatives of the victims of the Armenian massacres, the Holocaust, the Rwandan genocide – and as well a disservice to both history, law, and the prudent conduct of international relations.
We already knew that we were adrift in an ocean of fake news. It is far more dangerous to discover that we are also at risk of being immersed in the turbulent waters of “fake law”. We must push back with a sense of urgency. Such a development is not tolerable.
We thought that Joe Biden’s election would spare us from menacing corruptions of language of the sort disseminated by Donald Trump, John Bolton and Mike Pompeo. We thought that we would no longer be subjected to evidence-free allegations, post-truth and cynical concoctions of fact. It now seems we were wrong.
We recall Pompeo’s bragging about the usefulness of lying, we listened to his incendiary allegations against Cuba and Nicaragua, his outlandish claims that Hezbollah was in Venezuela, his antics on behalf of Trump — all in the name of MAGA [Making America Great Again].
Donald Trump and Mike Pompeo did not succeed in making America great again. They did succeed in lowering the already low opinion that the world had of America as a country that played by the rules set forth in international law. A decisive development in this downward spiral was George W. Bush’s megacrime — the unprovoked invasion and devastation of Iraq, which UN Secretary-General Kofi Annan called an “illegal war” on more than one occasion. We observed Barak Obama’s involvement in the destruction of Libya, given a bitter resonance by Hillary Clinton’s unspeakable words on Qaddafi’s demise uttered with imperial glee: “We came, we saw, he died”. We cannot forget Trump’s criminal economic sanctions and financial blockades punishing whole societies in the midst of a crippling pandemic. These were crimes against humanity committed in our name. Such sanctions reminded us of merciless medieval sieges of towns, aimed at starving whole populations into submission. We think back to the one million civilian deaths resulting from Germany blockading Leningrad 1941–44.
No, to make America great again, it seems perverse to suppose that this can come about by continuing to behave as an international bully, threatening and beating up entire peoples. No, in order to make America respected and admired in the world we can and should start by reviving the legacy of Eleanor Roosevelt, by rediscovering the spirit and spirituality of the Universal Declaration of Human Rights, and more broadly reenacting the peace-oriented humanism of John F. Kennedy.
We can and should be demanding more from Joe Biden and Antony Blinken. Evidence-free allegations of “genocide” in Xinjiang, China, are unworthy of any country, and most of all, of the country that wants to act as the prime international champion of human rights. Raphael Lemkin (1900–1959) would turn in his grave if he learned that the crime of “genocide” has been so crassly instrumentalized to beat the drums of Sinophobia. The sudden flurry of United States interest in the fate of the Uyghur people seems less motivated by compassion or the protection of human rights than lifted from the most cynical pages of the Machiavellian playbook of geopolitics.
Genocide is a well-defined term in international law – in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and Article 6 of the Rome Statute of the International Criminal Court. The most respected international tribunals have separately agreed that proof of the crime of genocide depends on an extremely convincing presentation of factual evidence, including documentation of an “intent” to destroy in whole or in part national, ethnic, racial or religious group. The International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Court of Justice – all have endeavoured to provide authoritative tests of “intent” treating “intent” as the essential element in the crime of genocide. This jurisprudence is what should be guiding our politicians in reaching prudent conclusions as to whether there exist credible grounds to put forward accusations of genocide, given its inflammatory effects. We should be asking whether the factual situation is clouded, calling for an independent international investigation followed by further action if deemed appropriate. In a nuclear-armed world, we should be extremely careful before making such an accusation.
Mike Pompeo’s allegation that China was committing genocide in Xinjiang was unsupported by even a hint of evidence. It was a particularly irresponsible example of ideological posturing at its worst, and besides, an embrace of reckless geopolitics. That is why it is so shocking to us that the 2021 US State Department Human Rights Report repeats the “genocide” charge in its Executive Summary, yet doesn’t even bother to mention such a provocative charge in the body of the report. This is an irresponsible, unreasonable, unprofessional, counter-productive, and above all, dangerously incendiary allegation, which could easily spiral out of control if China should choose to respond in kind. China would be on firmer ground than Pompeo or the State Department if it were to accuse the United States of “continuing genocide” against the First Nations of the Americas, Cherokees, Sioux, Navajo, and many other tribal nations. We can only imagine the angry backlash if it had been China that had been the first to put forward loose talk about genocide.
By making non-substantiated claims the U.S. Government is seriously undermining its own authority and credibility to revive its role as global leader. To play this constructive international role is not on display by “weaponizing” human rights against China – or Russia. Instead, a foreign policy dedicated to the genuine promotion of human rights would call for international cooperation in conducting reliable investigations of gross violations of human rights and international crimes, wherever they occur – whether it be in India, Egypt, China, Russia, Turkey, Saudi Arabia, Myanmar, Yemen, Brazil, Colombia. We would hope that Biden’s Washington is confident enough to be even receptive to investigations undertaken in response to allegations of violations against the United States of America and its closest allies in Europe and elsewhere.
The Orwellian corruption of language by U.S. Government officials, the double-standards, the dissemination of fake news by the mainstream media, including the “quality press” and CNN, self-anointed as “the most trusted name in news” are eroding our self-respect. Indeed, the manipulation of public opinion undermining our democracy as we succumb to the exaggerations of the wrongs of others that give an added bite to hostile propaganda, and are leading the world to the very edge of a forbidding geopolitical precipice, and in the process, heighten the prospects of a new cold war – or worse.
In this context we note that President Joe Biden has now pronounced on behalf of the United States Government his campaign pledge to declare what befell the Armenian community in 1915 as “genocide”. We recall, however, that the Nuremberg Judgment was very clear that for action to legally qualify as an international crime it must have been preceded by the enactment of the relevant legal norm. Otherwise, it would constitute an instance of retroactive criminalization. As we know, the word “genocide” was a linguistic innovation of the 1940s, and it only became criminalized by the adoption of the Genocide Convention in 1948. Of course, historians are free to examine whether, if the Genocide Convention had been in force in 1915, the elements of the crime of genocide would have been present, whether the historical evidence and the element of "intent to destroy in whole or in part" could be judicially established.
Source: https://www.counterpunch.org/2021/04/23/reflections-on-genocide-as-the-ultimate-crime/, 28 April 2021