27 May 2021 – Mukesh Kapila

A complicated squabble was underway, ignored by the household. Suddenly, the youngest screamed, “Save me. Genocide!” Rushing to the scene, I could see my older daughter sitting on the younger one, contesting possession of a toy.  It was 1994 and I was home from one of my frequent trips to Rwanda. There was much talk of genocide with gruesome images on TV. The youngest, inevitably losing an unequal struggle, had figured out the magic word to summon help.

Confiscation of the toy settled the ‘genocide’ but to no one’s satisfaction as the protagonists united against external interference, and the accompanying lecture against misusing a serious phrase was met with incomprehension. 

I was reminded of this by recent world affairs. For example, by Turkey’s fury at President Biden’s use of the G word in relation to the brutalities inflicted on Armenians by the Ottomans, 106 years ago. Also, by China’s aggressive reaction to the British Parliament’s determination that the treatment of the Uyghurs amounts to genocide.

Large-scale annihilations have occurred for ever: some anthropologists contend that we exterminated our Neanderthal ancestors. Historically, mass slaughter was seen as a right of rulers who disliked any of their subjects, or it was considered legitimate war tactics. In 416 BCE, the Athenians annihilated the Melians in “a war like no other”. 

Later, the pacification of Native Americans (1600s -1900s) was called a “genocidal war”. As populations exploded, so did the absolute toll from mass atrocities. Mao’s “Great Leap Forward” and Cultural  Revolution” (1949-1976) terminated 40-70 million Chinese while Stalin’s famine-horrors  (1932-1933) cost 7 million lives. At least a million perished in the India-Pakistan partition (1947), as did similar numbers in the Nigerian civil war (1967-70).

But were they genocides? How widely should the concept of genocide be drawn? On deadly matters, it is important to get the language right, if only to respect the victims, seek accountability and justice, and hope of future prevention.

What, then, is genocide?  Coined by Raphael Lemkin in 1944, it is a hybrid of the Greek genos, (race, people)  and Latin (killing).  Appalled by the annihilation of Armenians (1915-16) and by 1940s Nazism in Occupied Europe, he understood that a “crime without a name” can’t be countered.  It had to be re-envisioned as a “crime of all crimes”. Thus, in the aftermath of the Holocaust that killed 6 million European Jews (and 3 million others seen as ‘racially inferior’ or ‘defective’),  the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was born.

This was the first-ever human rights international treaty adopted by the young United Nations General Assembly – a day before the Universal Declaration of Human Rights.

The Convention defines genocide as acts intending to destroy, in whole or in part, a national, ethnic, racial or religious group, through killing its members, causing them serious bodily or mental harm, or inflicting living conditions calculated to physically destroy them.  Also defined as ‘genocidal acts’ are measures intended to prevent births within a group or forcibly transferring their children to another group. Also punishable are any complicity in genocide or attempting, inciting, or conspiring towards it.

To correct a popular misconception, nowhere in the Convention does it establish a threshold of numbers to be killed. Instead, what matters is underlying intent .  The relatively few 9-16,000 Native Americans slaughtered in 1840s California qualify as genocide, because this was due to an ethnically-targeted official policy.

The Convention asks signatories (152 States to date) to enact legislation to give it domestic effect, and expects States to prosecute the crime in the first place, failing which international tribunals.

The International Court of Justice had been created earlier in 1945 and now that the crime had a name, what happened next? More-or-less nothing for several decades, as countries took their time to ratify.

A spurt of activity started in the 1990s. The Convention was invoked for the first time in 1998 to prosecute genocidaires in Rwanda. Special Courts and Tribunals were established for the former Yugoslavia (1993), Sierra Leone (2002) and Cambodia (2006).  These ad hoc processes stimulated the 2002 creation of the International Criminal Court.

In 2005,  the UN General Assembly adopted the Responsibility-To-Protect (R2P) principles,  invoked subsequently in more than 80 UN Security Council resolutions for numerous crises ranging from Syria to Yemen, and elsewhere, as in Central African Republic, Somalia, and South Sudan. Whether or not such “difficult cases” can be resolved by a ritual chanting of the R2P prayer is doubtful.

Meanwhile, a new high priesthood was established in the form of a dedicated UN Office on Genocide Prevention And The Responsibility to Protect.  Its good incumbents have persevered. But the solemn post-Rwanda slogan of “Never Again” has become  “Again and Again” under the watch of a succession of feeble UN Secretaries-General who have balked at showing courageous leadership when most needed.

And so, mass atrocities continue to multiply with prevailing geopolitics paralysing decisive actions, even as platitudinous statements multiply at the UN Human Rights Council, and humanitarians do booming business applying salve and succour when their access is not blocked by rapacious regimes.  

My own unsought career at the frontlines of the world’s worst inhumanities started with the 1994 Genocide against the Tutsi in Rwanda. A career that also took me to  the genocides of Srebrenica (1995), Darfur (2003-4), and a trip back to the earlier one in Cambodia (1975). As well as the brutal killing fields of Sierra Leone, Sri Lanka, Bangladesh, Iraq, Angola, Afghanistan, East Timor, and a dozen other places where the same question was hotly debated when I was there: was genocide taking place? The same debate is now underway in Ethiopia’s Tigray region. 

What have I learnt from my personal journeys through recognised, refuted or uncertain genocides?

Foremost, I have understood that the diagnosis of genocide is usually made by historians, archaeologists and forensic pathologists.  In other words, it is a label applied in retrospect – when the ‘crime of all crimes’ is already done and sufficient “proof” has accumulated. Despite the Convention’s formal name, it  does not appear to have prevented any genocides.  

Post-genocide, all that is left is for courts to punish the perpetrators if caught and if successfully prosecuted. Perhaps that brings some consolation, closure, and (token) compensation for victims. But  it is not clear if it deters future genocidaires.  

Psychologists listening to the proceedings of criminal tribunals say that genocidaires are just like us: averagely good people capable of uncommonly bad things. They may be ‘bad’ but can’t be excused as ‘mad’.  Studying genocidal mindsets makes evident that they are not amenable to behavioural therapy. That is because the depths of depravity required to conceive and execute a genocidal venture compels relentless pursuit of the evil goal.

Having examined several genocides at close quarters – some, even as they were underway – what impresses me is not their bloody specifics. After all, the human mind is infinitely creative in terms of inventing painful horrors.  Thus, how exactly a genocide is executed is simply a function of prevalent traditions, tools, technologies, and organisation. Instead, more remarkable, in the so-called banality of evil, is the commonalty among diverse genocidal processes. This is summarised as: classification, symbolisation, discrimination, dehumanisation, organisation, polarisation, preparation, persecution, extermination, and denial (which often accompanies each stage). 

Genocides don’t happen through carelessness or accident i.e. they are not just the extreme end of a spectrum of violence that gets out of hand. There are numerous violent contexts around the world but few genocides. So, genocide prevention is not the same as violence prevention; genocides have occurred in times of both war and peace.

I was struck by the inter-connectedness of genocides following visits to the Paris Mémorial de la Shoah, Kigali Genocide Memorial, and Chicago’s Holocaust Museum. Did Cambodia’s Pol Pot and Rwanda’s Hutu extremists (both studied in Paris) learn their craft from Nazi processes against European Jews?  Each time a genocide happens somewhere, it creates a precedent and provides clues for refining ideas and methods that are transferable elsewhere. Just compare the similar designs of the former ID cards of Jews and Rwandans, separated only by time and place.

Gruesome artefacts and meticulous records in archives also indicate that genocides require extraordinary strategising, organising, and executing, through deploying large capabilities. So, genocides are overwhelmingly State acts, perpetrated by ‘authorities’. Rebel groups or non-state actors also commit terrible atrocities but they do not usually have the resources and capabilities to commit wholescale genocide.   It follows that the primary culpability for genocide lies with States – either for acts of commission or of omission.

The Genocide Convention includes the requirement to act urgently when a ’genocide’ is suspected or declared. However, history suggests that no genocide has ever been stopped or reversed except through external military intervention. The whole world had to go to war to stop Hitler, the Vietnamese had to intervene in Cambodia, NATO in Bosnia, and the Rwandans had to liberate themselves militarily.  Numerous UN military peacekeeping missions have played comparable intervention roles. However, by the time any external intervention – diplomatic, economic, military, peacekeeping – takes place, it is usually too late.  And with the mixed outcomes of expensive and badly-conducted external interventions, there is growing reluctance to do that.

Therefore, is the Genocide Convention still useful? Or does it put off earlier action at earlier stages of a potential genocide when an intervention could, arguably, make a difference? 

The Convention’s weaknesses lie in the original compromises made to get agreement among the post-World War II powers. They reflected the politics of that age, and the highly specific circumstances of the Holocaust. I understood this from visiting  Nuremberg where an International Military Tribunal meted out summary ‘victors’ justice’ to Nazi leaders in 1945-46 (indecently swift by today’s standards).  That had huge influence on the early development of international criminal law.  It explains why Lemkin’s original comprehensive approach was squashed into a highly-restricted definition of genocide that is difficult to satisfy in today’s courts.   

In any case, genocidaires are always highly intelligent and educated people. Apart from learning from other genocides, they are quick to adapt to a changing world order and advancements in technologies and communications. They do not leave behind convenient paper trails to prove ‘intent’.  And they are adept at expressing genocidal intentions in more indirect ways that wriggle around the limited prohibitions enshrined in the Convention’s language.

Thus,  when the Yazidis suffered wholesale enslavement, or when Uyghurs are sterilised on an industrial scale, millions of Rohingyas are ethnically cleansed away, and Tigrayans are starved and raped en masse, it is of little comfort to them to debate whether their misfortunes are part of a genocidal project or not.

On the weight of such experiences, it is tempting to say that the static Genocide Convention is  past its ‘best-by date’.  However, that would be premature. The Convention’s success lies eventually in the immense moral authority of its existence.  The artificially-constructed G word retains extraordinary power in all languages. We can see this with the many countries who have criminalised Holocaust denial.

Most importantly, the Genocide Convention has spawned a massive revolution in how human rights have come to be framed over the past 73 years, spawning a huge network of protective institutions and a growing body of other international laws that cover crimes against humanity, war crimes, and humanitarian assistance and protection.

Laws and their enforcement depend on new norms getting bedded-down and precedents being established.  This is shown by the legal interpretation advances made by the Rwanda and former Yugoslavia Tribunals and further consolidated in the Rome statute which governs the ICC. This covers not just a narrowly-defined genocide (as per the Convention) but extensively-defined pathway crimes such as crimes against humanity, war crimes, and aggression that are the modus operandi of today’s tyrants.

Once the wheels of justice start grinding, they may be slow but certainly relentless.  The ICC is currently investigating 14 country situations. There have been 30 cases before the Court which has issued 35 arrest warrants, 17 of whom have been detained. There have been 10 convictions and 4 acquittals.

Other innovations at the ICC includes partnerships with civil society. In its own words: “The Court wants to connect with you – whether you are a student or seasoned professional, a lawyer, teacher or community leader, or any other individual passionate, as we are, about global justice and lasting world peace”. It also has a heart; its Trust Fund for Victims symbolises a justice that acknowledges the suffering of those who have lost most and seeks to provide a measure of dignity and restitution.

What is particularly encouraging is the growing notion of ‘universal jurisdiction’ over certain crimes that are so heinous and reprehensible, that any nation can try them even if the crimes are not carried out within their territory or by their citizens. That is how, the tiny African country of Gambia could charge far-away Myanmar with genocide, in front of the International Court of Justice.

As head of the United Nations in Sudan (2003-4),  I had a ringside seat witnessing the genocidal predations of the Government-sponsored Janjaweed militia in Darfur.  I was told to shut up and look away  (I refused), and was eventually obliged to abdicate my position, by my boss UN Secretary general Kofi Annan (RIP) who had already presided over the neglects and inactions that accompanied previous genocides in Rwanda and Srebrenica. 

This week, I saw the Prosecutor of the International Criminal Court open proceedings against Janjaweed leader, Ali Muhammad Ali Abd-Al-Rahman (AKA Ali Kushayb), for 31 counts of crimes against humanity and war crimes, including torture, rape, and civilian murders.  But not genocide! That charge is rightly reserved for the mastermind of the Darfur atrocities: former President Omar Al Bashir, who languishes in a Khartoum jail pending, I hope, extradition to The Hague.

I doubt that we shall ever see a world without genocide, as this is very much part of the human condition.  And advancing accountability and justice will always remain a struggle with many setbacks.  It is also not a journey for the faint-hearted because of the personal risks that must be navigated. But there can be few more worthwhile endeavours.