CONCEPTUAL DEVELOPMENT OF GENOCIDE

International law defines genocide as acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’4 Although particular acts of violence may be indicative of genocide, a determination necessitates that violence is inflicted on individuals chosen ‘not for their individual qualities but for their group membership.’5 Through routinised, dehumanising narratives within the body politic, the stage is set for ‘rituals of violence’ against a group that no longer appears as lives, but rather as threats to life.6 When this implicit inequality of lives is juxtaposed to the equality of peoples under international law, accusations of genocide results in a ‘paralysing formulation of moral panic, outrage and inaction’ that highlights the systemic shortcomings in apprehending genocide.7

These shortcomings are reflected in the historical context of establishing genocide as a crime in international law. Raphael Lemkin first defined Genocide as the deliberate destruction of a group through immediate mass killings, or coordinated actions aimed at destroying the essential foundations of group life.8 While the inclusion of cultural destruction was significant to the latter part of this definition,9 it was ultimately omitted from the Genocide Convention as many states were uncomfortable with likening it to the physical destruction of the Holocaust.10 There was also an underlying political motivation in that certain states did not want to criminalise their own behaviour e.g. the United States’ opposition of cultural genocide equivocates their historical relationship with Indigenous peoples.¹¹ The Genocide Convention’s limited codification of the crime and its victims is ultimately a product of political consideration, and ignores the fact that genocide is rooted in ‘structural inequality, as reflected by government policies and other social indicators’ or that cultural destruction is a risk factor for physical genocide.¹² By always ‘looking for Birkenau’, biases towards traditional interpretations informed by the legal canon inhibits the detection of new genocidal practices prior to mass violence.¹³ By only addressing past, unprevented grievances, the Genocide Convention confers significant power on politics to recognise and apprehend genocide.

¹ Judith Butler, Frames of War: When is Life Grievable? (Verso, 2009) 1.

²Peter Quayle, ‘Unimaginable Evil: The Legislative Limitations of the Genocide Convention’ (2005) 5 International Criminal Law Review 363, 371.

³ Amanda Alexander, ‘The Ethics of Violence: Recent Literature on the Creation of the Contemporary Regime of Law and War’ (2021) Draft submitted to Journal of Genocide Research 1, 9.

4 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) art 2 (‘Genocide Convention’).

5Quayle (n 2) 369.

6Margaret Yard, ‘Grievability: The Social Marker for a Life That Counts’ in Marcelline Block and Christina Staudt (eds), Unequal Before Death (Cambridge Scholars Publishing, 2012) 138, 142.

7Quayle (n 2) 363.

8Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Carnegie Endowment for International Peace, 1944) 79.

9Ciara Finnegan, ‘The Uyghur Minority in China: A Case Study of Cultural Genocide, Minority Rights and the Insufficiency of the International Legal Framework in Preventing State-Imposed Extinction’ (2020) 9(1) Laws 1, 3.

10Sixty fourth meeting, held at Palais de Chaillot, Paris, on Friday, 1 October, GAOR, UN Doc A/C.6/SR.64 (1 October 1948) 15.

11Lindsey Kingston, ‘The Destruction of Identity: Cultural Genocide and Indigenous Peoples’ (2015) 14(1) Journal of Human Rights 63, 65.

12Ibid 68.

13David Tobin, ‘Genocidal processes: social death in Xinjiang’ (2022) 45(16) Ethical and Racial Studies 93, 96.

The Power Of A Label

As recognition of a genocide is ‘constrained by the ideology of the global political system that constructs it,’14 the use or refrain of ‘the genocide label’ has significant implications in how a situation can be dealt with.15 While rhetorical reassurances of apprehension under international law serves as a substitute for policies of deterrence and counter-mobilisation, inaction is tantamount to denial.16 The withholding of the genocide label in the face of a mass atrocity can undermine efforts for international cooperation to halt further violence.17 Not only does this suggest that a life is meaningful only when and if the powerful acknowledge it,18 it also shows that the international forum does not take the sign of destroyed life as something they are responsible for unless it is politically incentivised.19

Although recognition of genocide must be carefully evaluated, some argue that falsely recognising genocide is a diminution of grave historical events that ‘degrades the meaning of the term…[and makes] defending against a real genocide more difficult.’20 While it is possible that public consciousness of genocide as a crime in international law has been effaced by the use of the term in political rhetoric, comparisons to the Holocaust may preclude the observation of less planned or less total cases of genocide.21 The Genocide Convention precisely describes a single, historical event that has become ‘not simply the archetypal genocide but the only genocide.’22 In this sense, the effectiveness of the Genocide Convention is challenged by present unprevented atrocity.23 The fixation with genocide additionally obscures the fact that other crimes against humanity continue to be committed and that these acts are, in themselves, worthy of articulate prevention and prosecution.24 Nonetheless, the deliberation in labelling a situation as a genocide is marked by political procrastination that consigns the targeted population to an indeterminate limbo, suspending legal and moral protection while atrocities continue to be committed.25

Conclusion

The Genocide Convention’s definition of genocide reflects a process of political bargaining that has codified the lives that matter. However, this limited conception fails to identify emerging genocidal processes in pre-existing asymmetrical power relations, which are often supported by official narratives of dehumanisation and transformation.26 It also ignores the spectral quality of lives that are deemed ungrievable by the state but are not yet considered victims in international law. Subsequently, to label a situation as ‘genocide’ is to determine that some level of intervention is required to halt the atrocity. States are therefore hesitant to apply the label — they want to retain the option of acting, while avoiding the specific requirement of doing so depending on the political circumstances.27 This political calculation in applying the genocide label implicitly confirms a system that values lives differentially. However, this does not absolve the responsibility of the global community. Responsibility requires responsiveness, and that responsiveness ‘is not merely a subjective state, but a way of responding to what is before us with the resources that are available to us.’28 Therefore, in the absence of other available coercive legal mechanisms, marshalling of political will remains a key piece in formulating effective international responses to allegations of genocide to ensure that tacit permission is not provided for senseless violence.

14Zoe Samudzi, ‘Paradox of Recognition: Genocide and Colonialism’ (2020) 30 Postmodern Culture 1.

15Michael Kelly, ‘Genocide - The Power of a Label’ (2007) 40(1) Case Western Reserve Journal of International Law 147, 148.

16Samudzi (n 14) 8.

17Ibid.

18Moya Lloyd, ‘Naming the dead and the politics of the ‘human’’ (2016) 43(2) Review of International Studies 260, 262.

19Judith Butler, Precarious Life: The Powers of Mourning and Violence (Verso, 2004) 6.

20Joel Slawotsky, ‘Is China Guilty of Committing Genocide in Xinjiang?’ (2021) 20(3)

Chinese Journal of International Law 625, 633.

21Helen Fein, ‘Genocide: A sociological perspective’ (1990) 38(1) Current Sociology 1, 9.

22Quayle (n 2) 365.

23Ibid.

24Ibid. 137

25Yard (n 6) 144.

26Tobin (n 13) 98.

27Kelly (n 15) 162.

28Butler (n 1) 50.