Not all awful acts are equally awful
By Herbert Rothschild
Genocide: Acting “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” (U.N. Convention on the Prevention and Punishment of the Crime of Genocide)
Last Sunday, the Office of the U.N. High Commissioner for Human Rights (OHCHR) released a report on Ukrainian civilian casualties since the Russian invasion began. It had recorded 4,232 civilian casualties — 1,793 killed and 2,439 injured. The report cautioned that the numbers may be an undercount because its information from areas still experiencing intense fighting was incomplete.
The report said that most of the civilian casualties were caused by explosive weapons with a wide impact area — shelling from heavy artillery, rockets, and missile and air strikes. However, there have been confirmed cases of intentional killing of civilians, especially in the city of Bucha. Its mayor estimated that Russian troops killed more than 300 persons there. Further, according to a report by Franklin Foer in the April 4 Atlantic Magazine, on Feb. 25, a cluster bomb struck a preschool in Sumy where civilians sheltered; on March 9, Russia attacked Mariupol’s maternity hospital; and on March 16, it bombed that city’s municipal theater, killing 300 people, even though “children” had been painted in large white letters on the front yard.
These are reprehensible acts. My focus in this column is to explore whether deeming Russia’s conduct of the war as “genocide” serves the quest for a more humane world.
President Biden applied that term in remarks he made in Iowa Tuesday. Later, when asked whether the term was appropriate, he replied, “Yes. I called it ‘genocide.’ It’s becoming clearer and clearer that Putin is just trying to wipe out the idea of being a Ukrainian.” Perhaps as he spoke Biden had in mind Putin’s earlier assertions that Ukraine is not a real country apart from Russia. If so, Biden confused denial of statehood with denial of nationhood, a distinction I made in my column last week.
The U.N. General Assembly adopted its Convention on the Prevention and Punishment of the Crime of Genocide on Dec. 9, 1948, and it entered into force on Jan. 12, 1951. As of 2019, 152 nations are party to the treaty, including Russia and the U.S.
The Civil Rights Congress, a short-lived (1946-1956) U.S. organization, brought one of the first accusations under the Convention, citing crimes against black Americans. Our government wasn’t prosecuted. Among other reasons, the U.S. (but not Russia) is one of 13 countries that conditioned their ratification on immunity from prosecution without the consent of the national government.
Given the definition of genocide in the Convention, one can make a case that the long and gruesome treatment of blacks in the U.S. qualifies as genocide. In my opinion, though, that case is not as strong as the case against our country’s treatment of Native Americans.
Blacks suffered from four of the five prohibited acts the Convention specifies — killing members of the group; causing them serious bodily or mental harm; deliberately inflicting on them conditions of life calculated to bring about their physical destruction in whole or in part; and imposing measures intended to prevent births within the group. To qualify as genocidal, however, those acts must have been committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The case law to date has conditioned proof of intent on the existence of a state or organizational plan or policy to eradicate such a group.
The benchmark genocide, of course, was the German effort to exterminate all Jews. It was the Holocaust that prompted the U.N. to adopt the Convention, because genocide was perceived as uniquely awful among all the awful cruelties humans inflict on one another. Biden’s explanation of why he labeled Russian actions in Ukraine a genocide uses the correct definition of the crime — an intent to deny an identifiable people its very right to exist — but no evidence has yet surfaced to support his charge. Even if the number of civilian deaths to date is triple the 1,793 OHCHR reported, that toll doesn’t suggest an intent to exterminate 30 million Ukrainians. Nor does the way most of them were killed.
Why is it important to make these discriminations? The U.S. has two self-interested reasons. One is that Article I of the Convention obligates its parties to “undertake to prevent and to punish” the perpetrators of genocide, and the U.S. has no desire to go to war with Russia over Ukraine. The other is that if what Russia has done there is genocide, what will be said about our actions in Vietnam, Iraq and elsewhere? Do we really want a new generation to learn about Operation Phoenix, the Tiger Force or Abu Ghraib?
But those aren’t my reasons. I’d be pleased for the U.S. to face what it has done; at the least it might put an end to our current orgy of self-righteousness. I want the crime of genocide to retain its distinctiveness so that the community of nations under U.N. auspices will intervene whenever and wherever it occurs. What Russia is doing in Ukraine is, unfortunately, commonplace. Too many nations have done it and are doing it to galvanize collective intervention. The law mustn’t be corrupted by special pleading. If so, it surrenders its authority.
Herbert Rothschild is an unpaid Ashland.news board member. Email him at email@example.com.