Many people imagine that ‘genocide’ is a term that has existed for millennia. It has not. It was invented in the year 1944 by a Polish jurist called Raphael Lemkin, who had studied law in the city of Lviv in Ukraine, and who in the 1930s became increasingly concerned about the way in which sovereign power was being used and abused in relation to people – citizens and foreigners. In the summer of 1944, he coined the word 'genocide’, taken from two words, 'genos' and 'cide’, Latin and Greek: “to kill a group”, and worked hard to promote its broader usage.
I first came across the origins of the word while preparing a lecture that I gave at the University of Lviv in 2010. In my search for archival material, I went to Columbia University and found a remarkable legal document belonging to Raphael Lemkin, in which the word ‘genocide’, I think, appears for the very first time. It's undated, probably 1942 or 1943. He took the word forward hoping that a new legal term would come into being to signal limits on the exercise of sovereign power. His hope was to protect groups from abuse in contradistinction to the parallel development of the concept of human rights and crimes against humanity, which sought to protect individuals rather than groups. He had some success. He published his book Axis Rule in November 1944 as the Second World War was coming to an end, chapter nine of which was entitled ‘Genocide’ – the first published instance of the word. It generated a great deal of interest. There were articles about it, a front-page book review in the New York Times Review of Books.
The following summer in 1945, in London at Westminster Hall, he sought to get the term introduced into the statute of what would become the International Military Tribunal at Nuremberg. He didn't quite succeed. It's not listed amongst the crimes in Article Six, Paragraph C, but he did get it involved as a war crime in the indictment a few weeks later in October 1945. And so, when the proceedings at Nuremberg opened in November 1945, on the first day, the word ‘genocide’ was spoken in court. Curiously, the genocide word is not mentioned in the Nuremberg judgement, but a month after the judgement, the United Nations General Assembly at its first meeting endorsed the term as a crime under international law. And two years later in December 1948, the term genocide was the subject of the first multilateral human rights treaty: The Convention on the Prevention and Punishment of Genocide.
That convention has in its definition, Article Two, what the term means: “in the present convention, genocide means any of the following acts committed with intent to destroy in whole or in part a national, ethnical, racial, or religious group’. And then it sets out the acts from killing and torture and various other abuses. But the essential thing about genocide, what distinguishes it from war crimes and crimes against humanity, was the question of intent. You had to prove the intent to destroy a group in whole or in part, and that has turned out to be a very difficult thing to do. Over the next 50 years there was literally no practice at all in relation to the crime of genocide before national or international courts. That changed in the 1990s with the collapse of the former Yugoslavia, and the crimes perpetrated in Rwanda. In July 1998, genocide was included in the statute of the International Criminal Court, and ever since it's been part of the life of international law.
But its role in international law is complex and it gives rise to many controversies and challenges. There is, in particular, a gap between public discourse about genocide – which essentially addresses any act which is particularly horrible, especially that involves the killing of a large number of people – and the legal definition, which sets a very high bar in particular, the need to prove an intent: what motivates the act of killing. There are, then, today three main challenges for me on the crime of genocide.
Proving intent
The first is proving intent. This is notoriously difficult. Of course, you can prove the intent to destroy a group in whole or in part if the perpetrator leaves bits of paper around saying they intend to destroy X or Y group. That's what the Nazis did in relation to Jews, and Roma, people with disabilities, and others. But that caused others subsequently to learn a lesson: don't leave pieces of paper lying around. And so courts have been left to infer intent from a pattern of behaviour. And this is where matters get very difficult. In fact, what has happened is that the International Court of Justice, in a judgement of 2015, described the way in which you infer intent as follows: “in order to infer the existence of the dolus specialis from a pattern of conduct, it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question”. This is a very high threshold. It means that if someone has a double intent to defend themselves and to destroy a group, it could be said that the necessary inference could not be drawn.
In fact, psychologists will tell you that the individual human actor will often have a multitude of motivations or rationales for what they do, in which the intent to destroy a group may exist, but it may not exist alone. And so, I've reached the conclusion that this very high threshold is deeply problematic and means that in many cases of the kind that Raphael Lemkin assumed would be met by the Genocide Convention, they will be excluded. It's very hard to prove intent. Almost impossible – not impossible, but almost impossible.
Group identity
The second challenge is that the concept of genocide has reinforced matters of group identity, which did not exist in international law in the same way prior to the invention of the term. What this means, in effect, is that if you want to prove a crime against humanity, you don't need to look at the intent, but to prove genocide, you have to show that the intent exists to destroy a group in whole or in part. And that has, in my experience doing cases over the last 25 years in the field of genocide and crimes against humanity, reinforced intergroup hatreds. It has meant that the victim group, in seeking to prove that the perpetrator group has perpetrated a genocide, developed very strong negative feelings towards that perpetrator group and vice versa. The point that I've come to as I've explained a little in my book, East West Street ,where I explore all of these issues in greater detail, is that the invention of the concept of genocide, no doubt very well-intentioned, may have given rise to the very thing it was intended to prevent: the invention of the concept of genocide could actually give rise to more genocides.
Crimes against humanity and war crimes
The third challenge with the term genocide is that the 1948 Convention provides access to the International Court of Justice to address allegations of genocide, but there's no equivalent route to the International Court of Justice for crimes against humanity and war crimes. And so, the consequence has been that allegations of mass atrocity tend to be shoehorned into the crime of genocide as a way of getting a day in court. This is obviously problematic because it skews public perceptions, and sends out a signal that somehow genocide is worse than other international crimes. It's not, in my view: crimes against humanity are just as awful, as are war crimes, and we need to think of a way to address this problem.
The construction of legal norms
What is to be done? I've thought long and hard about this. I've tried in various cases at the International Court of Justice to persuade the court to lower the threshold so that genocide is not so difficult to prove. But that has been resisted by successive decisions of the International Court, although I think there's still room there for the court to review the situation.
We also plainly need parallel conventions on war crimes and crimes against humanity to avoid the kind of skewing that has taken place. And we need to think about the place of the ‘group’ in our construction of legal and other norms.
It's a difficult challenge. The term ‘genocide’ is not going to disappear. It's here to stay. We probably need to reinvent it. We certainly need to think about how to avoid a skewing between it and other international crimes.
Philippe Sands Hon FBA is Professor of Public Understanding of Law at University College London.
