|
|
The following appeared in the Journal of Genocide Research (2007),
9(4), December, 661–674; thanks to Hector.
|
|
|
| |
DOCUMENTS AND DISCUSSION
Can there be genocide without the intent to commit genocide?
GUENTER LEWY
The question posed in the title of this essay appears to be nonsensical, if not outright
self-contradictory, but in fact it is not. As we will see below, several wellknown
students of genocide have argued that it is possible for genocide to take place without an
intent to cause genocide. Such a view, I submit, would first have to be squared with the
text of the Genocide Convention of 1948. According to Article II of the convention, the
crime of genocide consists of a series of acts “committed with intent to destroy,
in whole or in part, a national, ethnical, racial or religious group as such [my italics].”[1] Since genocide is a legal term in international
criminal law, the definition of the convention establishing the crime of genocide assumes
a prima facie authoritativeness. The issue of the definition of genocide should not
be used to exculpate crimes that do not reach the threshold of the legal definition of
genocide. However, as I will argue in this essay, the disregard of intentionality can
stand in the way of a full understanding of events that appear to constitute genocide and
lead to a distorted finding of responsibility. The significance of the intent issue goes
well beyond the question of how best to define genocide as a crime under international
law.
The meaning of the Genocide Convention’s intent clause
Practically all legal scholars accept the centrality of the intent clause in the Genocide
Convention. Genocide, writes Alexander K. A. Greenawalt, “is a crime of specific or
special intent, involving a perpetrator who specifically targets victims on the basis of
their group identity with a deliberate desire to inflict destruction upon the group
itself.”[2] It is not enough that a perpetrator acted
with knowledge that his actions contributed to the genocide in question, i.e. that he had
general intent. The perpetrator must have had special or specific intent, he must have
desired and specifically intended the result of genocide.
|
|
The prevailing view, as stated by Nehemiah Robinson in a well-known commentary, is
that “acts of destruction would not be classified as Genocide unless the intent to
destroy the group existed or could be proven regardless of the results achieved.”
The destruction of a group without such intent “would not fall under the
definition.”[3]
During the deliberations leading up to the adoption of the Genocide Convention, some
delegates argued for a clear specification of the reasons or motives for the
destruction of a group. In domestic law motive is often a minor matter. Whether A
breaks into the house of B and steals the money he finds there in order to pay his
debts or to buy himself a fancy television is immaterial. The crime of burglary does
not depend on the motive for the act. Two individuals may intend to commit the same
crime but for different reasons.[4] Finding a
motive may help establish that an individual intended a particular act. The fact
that an individual who killed a person strongly hated his victim and repeatedly
threatened him will make it more difficult for him to argue that the killing was
incidental rather than deliberate, but in many cases the motive for a crime is
irrelevant for establishing guilt. In defining the crime of genocide, on the other
hand, it was felt by the delegates of some countries, motive was important. Modern
war, argued the representative of New Zealand, for example, is total and some
instances of aerial bombing might destroy an entire group. Hence unless the
convention listed the reasons for the destruction of groups, such bombing might be
considered a case of genocide.
The issue of motive was finally resolved by adding the words “as such.” Instead
of listing a variety of incriminating or exculpating motives, the term “as such”
was held to stand for the aim of destroying the group qua group.[5] This solution did not satisfy all delegates, but it became part of
the final text anyway. As Robinson phrases the current status of the intent clause:
besides the intention of destruction “there must be a specific motive for the act,
derived from the peculiar characteristics of the group.”[6] The destruction of the group must aim at ending the group as a
national, ethnical, racial or religious entity. Or as another legal scholar puts it:
“Evidence of hateful motive will constitute an integral part of the proof of a
genocidal plan, and therefore of genocidal intent.”[7]
Not satisfied with the language of the Genocide Convention, the United States
ratified the convention with the “understanding” that acts in the course of
armed conflicts “committed without the specific intent required by Article
II are not sufficient to constitute genocide as defined by this Convention [my
italics].” The implementing legislation (the Proxmire Act of 1988) follows up on
the terms of this “understanding” and speaks of “the specific intent” to
destroy a group in whole or in part.[8]
The strong emphasis of the convention on intentionality also means that there can be
no such thing as “negligent genocide.” In 1978, the report of a United Nations
Special Rapporteur on genocide proposed modifying the intent requirement so that the
convention would reach acts of omission as well as commission, and in 1985, another
rapporteur made the same suggestion. However, no action has been taken on these
proposed changes.[9] The intent requirement of
the convention is also reaffirmed in Article 30 of the Rome Statute of the
International Criminal Court adopted in 1998.[10]
In its commentary on the 1996 Code of Crimes Against the Peace and Security of
Mankind, the International Law Commission referred to specific intent as “the
distinguishing characteristic of this particular crime under international law”:
The prohibited acts enumerated [. . .] are by their nature
conscious, intentional or volitional acts which an individual could not usually
commit without knowing that certain consequences were likely to result. These are
not the types of acts that would normally occur by accident or even as a result of
mere negligence [. . .]. [A] general intent to commit one of the enumerated acts
combined with a general awareness of the probable consequences of such an act is not
sufficient for the crime of genocide. The definition of this crime requires a
particular state of mind or a specific intent with respect to the overall
consequences of the prohibited act.[11]
|
| |
Two ad-hoc tribunals established by the United Nations to try violations of international
humanitarian law committed in the former Yugoslavia and Rwanda, respectively, have
addressed the role of intent in the crime of genocide. On August 2, 2001, General Radislav
Krstic, the Serbian commander of the Drina Corps operating in the Srebrenica area in July
1995, was convicted of genocide for his role in the massacre of more than 7,000 male
Bosnian Muslims. What had begun as ethnic cleansing, the court ruled, turned into genocide—the
deliberate killing of all Muslim men of military age.[12]
Even though there was no evidence that Krstic either personally killed anyone or that he
had been present at the mass killings, it was enough that he was held to have had
knowledge of the plan to destroy the Bosnian Muslims of Srebrenica and participated
actively in it. Krstic was given a jail sentence of 46 years, reduced to 35 years on
appeal.[13] On the other hand, the Serb Goran Jelisic,
former commander of a detention camp in the Brcko region of northwest Bosnia and
Herzegovina, was acquitted in late 1999 of the charge of genocide because he had killed
“arbitrarily” and “randomly” rather than with “an affirmed resolve to destroy in
whole or in part a group as such.” The prosecution had argued that it was sufficient if
the accused knew the consequences of his acts—the extermination of a group—though he
may not have sought it, but the court rejected this view. The crime of genocide, the
tribunal declared, required a specific intent, and this meant that a perpetrator, “by
one of the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the
destruction, in whole or in part, of a national, ethnical, racial or religious group, as
such.”[14] Instead, Jelisic was sentenced to 40
years imprisonment for crimes against humanity, a charge to which he had pleaded guilty.[15]
The Trial Chamber of the International Criminal Tribunal for Rwanda, in the Akayesu
case decided on September 2, 1998, also ruled that the crime of genocide requires a
specific intent to commit genocide. Even in the absence of a confession, the special
intent to destroy a protected group as such could be inferred from the speeches of the
accused and the massive nature of the atrocities committed. Killings had been carried out
in a planned and concerted manner. The fact that the accused had deliberately and
systematically targeted victims on account of their membership in a particular group (the
Tutsis), while excluding the members of other groups, enabled the Chamber to infer the
genocidal intent of a particular act.[16]
Critics of the Genocide Convention have taken exception to the limited scope of the
convention’s definition of protected entities, especially the exclusion of political
groups, as well as the ambiguity of the requirement that a group be destroyed “in whole
or in part.” Such criticism has also targeted the intent provision.
Structural violence as a form of genocide
The crucial role of intentionality in establishing the crime of genocide, emphasized by
legal scholars and UN-sponsored tribunals, has been challenged by Isidor Walliman and
Michael N. Dobkowski in their book Genocide and the Modern Age, published in 1987.
The two genocide scholars questioned the idea that “only intentional or planned massive
destruction of human lives should be called genocide,” an assumption that leads to “the
neglect of those processes of destruction which, although massive, are so systematic and
systemic, and that therefore appear so ‘normal’ that most individuals involved at some
level of the process of destruction may never see the need to make an ethical decision or
even reflect upon the consequences of their action.” In the modern age, “the issue of
intentionality on the societal level is harder to locate because of the anonymous
structural forces that dictate the character of our world.” Hence in contemporary
society, characterized by the domination of individuals by forces such as market
mechanisms and bureaucracies, Walliman and Dobkowski argued, the emphasis on
intentionality is almost anachronistic. It has “the tendency to gloss over structural
violence which through various mechanisms can be equally as destructive of human life as
many an intentional and planned program of annihilation.”[17]
|
|
The Australian historian Tony Barta, who acknowledges his indebtedness to Marx, has
applied the idea of structural violence to the fate of the Australian aborigines.
Genocide, he argued, need not have “intentionality as its defining characteristic.”
There can be terrible destruction—genocidal outcomes—without “purposeful
annihilation.”[18] In Australia waves of
settlers introduced sheep and cattle which became the “instruments of genocide.”
The destruction of the aborigines was accomplished not primarily through individual
acts of killings, numerous as these were, but by “the objective nature of the
relationships” between (white) capitalist wool producers and (black)
hunter-gatherers which proved to be totally incompatible. Both the aboriginal
inhabitants and the invaders needed the land and the ensuing conflict resulted in a
“relationship of genocide.”[19] Driven from
their lands and deprived of their traditional food supplies, the aborigines died.
Barta admits that by far the greatest number of deaths—possibly two thirds—were
caused by diseases such as smallpox against which the natives had no immunity, but
he dismisses the significance of this statistic. A whole race, he concludes, became
“subject to remorseless pressures of destruction inherent in the very nature of
the society. It is in this sense that I would call Australia, during the whole 200
years of its existence, a genocidal society.”[20]
 |
|
Dr.
Guenter Lewy |
In a critique of Barta, the sociologist Frank Chalk has argued against the
downplaying of the role of individuals in the occurrence of genocide. “Systemic
variables facilitate genocide, but it is people who kill.” The same structures of
society do not always lead to the same consequences. States eschewing capitalism
such as China and Cambodia have perpetrated huge massacres of ethnic groups and
social classes. Arguments which minimize the importance of intentionality, Chalk
points out, “also distract our attention from the role of absolutist or utopian or
uncompromisingly idealistic doctrines or ideologies in the great mass killings of
the twentieth century.” The search for the perfect society became the recipe for
the most horrible bloodshed in which millions lost their lives.[21]
The abandonment of the criterion of intentionality, I would add, also makes it
difficult to assign guilt. Who is to be held responsible for structural violence?
Guilt is individual; one cannot punish a social system, violent and unjust as it may
be. The principle of individual responsibility for international crimes was affirmed
by the International Military Tribunal that tried the German major war criminals.
Crimes against international law, declared the Nuremberg Court in its judgment
delivered on September 30-October 1, 1946, “are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced.”[22]
According to the judgment of the International Court of Justice rendered in the case
of Bosnia and Herzegovina v. Serbia and Montenegro on February 26, 2007, “states
can be held responsible for genocide,” but proof has to be established that the
acts of genocide were committed by “persons or entities ranking as organs of the
respondent.”[23] This is in line with Article
IV of the Genocide Convention which provides punishment for “persons committing
genocide,” irrespective of “whether they are constitutionally responsible
rulers, public officials or private individuals.”
Genocidal consequences as proof of genocide
The Holocaust, the Nazis’ attempt to destroy the Jewish people, is an instance of
genocide in which the intentions and plans of the perpetrators are fully known.
Leading Nazi personalities—from Hitler down to Himmler and Hans Frank and
officials in the Ministry for the Occupied Territories—repeatedly and approvingly
talked of the destruction of the Jews that was underway. All this and more is caught
on thousands of original documents captured after the defeat of Germany that detail
the decision-making process leading up to the Final Solution and tell in abundant
detail why and how the process of annihilation unfolded. The names of the men who
made and implemented the plan of destruction are recorded and we know why they
committed their crimes. Unfortunately, this kind of rich inculpatory evidence is
rare, and in many cases of genocide the guilty intent of the perpetrators can be
inferred only from the acts themselves. Proof of specific intent, as required by the
Genocide Convention, may be difficult.
These difficulties have led some genocide scholars to abandon the criterion of
intentionality altogether and to argue that what counts is not intent but results
and consequences. “Very few governments,” writes Henry R. Huttenbach, “can be
legally indicted to the satisfaction of the standard rules of evidence for their
intentions.” Hence the crime of genocide “must stand on the result first and
foremost”; it should be defined “in terms of the actual fate experienced by the
group” and not on the basis of “the goals of the perpetrators.” Genocide,
according to Huttenbach, “is any act that puts the very existence of a group in
jeopardy.”[24]
|
| |
Huttenbach’s formulation, in my view, is inadequate. As I will try to demonstrate
presently through the example of the tragedy of the American Indians, the disregard of
intent can mislead us and produce wrong conclusions. A huge loss of life in and by itself,
even consequences that threaten the existence of a group, is not proof of genocide.
The fate of the American Indians
The story of the encounter between European settlers and America’s native population
does not make for pleasant reading. “We took away their best lands,” observed John
Collier, commissioner of Indian affairs under Franklin D. Roosevelt in 1938, “broke
treaties, promises; tossed them the most nearly worthless scraps of a continent that had
once been wholly theirs.”[25] Helen Hunt Jackson’s
recitation of forced removals, killings and callous disregard of Indian rights in her
famous book A Century of Dishonor [26] is
one-sided. The book does not dwell on the mutilation of bodies during Indian raids on
undefended farmsteads, the scalping and torture of captives and other atrocities. Still,
her indictment captures some essential elements of what happened. There can be no doubt
that the Indians of America suffered horrendously and experienced nearextinction. Hence it
is not surprising that Indian rights activists and some historians too have used the terms
“genocide” and “holocaust” to describe the fate of the Indians of the New World.
Thus, according to Ward Churchill, a professor of ethnic studies at the University of
Colorado, the reduction of the North American Indian population from more than 12 million
in 1500 to barely 237,000 in 1900 represents a “vast genocide [. . .], the most
sustained on record.” This “holocaust was and remains unparalleled, both in terms of
its magnitude and the degree to which its goals were met.”[27] By the end of the nineteenth century, writes David E. Stannard, a
professor of history at the University of Hawaii, Native Americans had undergone the “worst
human holocaust the world had ever witnessed, roaring across two continents non-stop for
four centuries and consuming the lives of countless tens of millions of people.”[28] In the judgment of Lennore Stiffarm and Phil Lane,
Jr., “there can be no more monumental example of sustained genocide—certainly none
involving a ‘race’ of people as broad and complex as this—anywhere in the annals of
human history.”[29]
The charge of genocide against the Indians has gained wide currency in Europe and
elsewhere. Relying in part on the work of Stannard, a French specialist on American
economic and social history has concluded that in describing the fate of the American
Indians the term genocide is indeed “appropriate.”[30]
In the eyes of Jehuda Bauer the destruction of the Indian people by Anglo-Saxon settlers
was “clearly genocide.”[31] In this country few
professional students of American history share this view, but many others in the academic
community and beyond have accepted the charge of genocide. The argument became popular at
the time of the Vietnam War when historians opposed to the conflict drew parallels between
our actions in Southeast Asia and earlier examples of supposedly ingrained American
viciousness toward non-white people. The author of a book entitled The American Indian:
The First Victim called America’s white civilization as originating in “theft and
murder” and the wars against the natives “efforts towards the genocide of the Indian
people.”[32] The troops under the command of the
famous Indian scout Kit Carson, wrote the historian Richard Drinnon in 1980, were “forerunners
of the Burning Fifth Marines” who set fire to Vietnamese villages, and the Puritans at
Fort Mystic in 1637 piled up a body count “that equaled or exceeded that at My Lai in
1968.”[33] By the end of the 1970s, a study of the
changes in high school American history textbooks concludes, Christopher Columbus had
ceased to be a hero and instead had become “a genocidal criminal, responsible for the
wreckage of the unspoiled civilizations that preceded the European arrival.”[34]
The 1992 quincentenary of the landing of Columbus brought to the fore more accusations of
genocide and revealed the rampant guilty conscience. The National Council of Churches
adopted a resolution that called Columbus’ landfall “an invasion” resulting in the
“slavery and genocide of native people.”[35] In a
widely read book entitled The Conquest of Paradise, Kirkpatrick Sale charged the
English “and their United States successors” with following a policy of extermination
that lasted four centuries.[36] An Encyclopedia of
Genocide, published in 1999 and edited by the genocide scholar Israel Charny, includes
an article on genocide against the American Indians authored by Ward Churchill which
argues that the “express objective” of the Indian wars waged by the United States was
“extermination.” [37] The “only appropriate way”
to describe the way white settlers treated the Indians, the Cambodia expert Ben Kiernan
has written, is “genocide.”[38]
|
|
A demographic disaster
It is a firmly established fact that a mere 250,000 Native Americans were still
alive in the territory of United States at the end of the nineteenth century. Still
in scholarly contention, however, is the number of Indians at the time of first
contact with the Europeans. Some students of the subject speak of a “numbers game.”[39] Since the 1960s, in particular, observes the
anthropologist Shepard Krech, population estimates have become “sharply
politicized.” Indian scholars have accused non- Indian demographers of minimizing
the size of the aboriginal Indian population in order to make the decline less
severe than it was.[40]
The disparity in estimates is enormous. In 1928 the ethnologist James Mooney arrived
at a count of 1,152,950 Indians in all tribal areas north of Mexico at the time of
initial contact with Europeans.[41] By 1987, in
American Indian Holocaust and Survival, Russell Thornton gave the figure of
five-plus million Indians in the coterminous United States area in 1492.[42] Considering this estimate as far too low,
Lenore Stiffarm and Phil Lane, Jr. called Thornton “a somewhat confused Cherokee
demographer” who seeks academic respectability by aligning himself with the
lowcounters, and they proposed the number of 12 million native inhabitants within
the present borders of the United States.[43]
This figure is indebted to the anthropologist Henry Dobyns, who in 1983 estimated
the aboriginal population of North America as 18 million and that in today’s
United States as about 10 million.[44]
From one perspective, these differences, however startling, may seem beside the
point; there is ample evidence, after all, that the arrival of the white man
triggered a drastic reduction in the number of Native Americans. Nevertheless, even
if the higher figures are credited, they alone do not prove the occurrence of
genocide.
To address this issue properly we must begin with the most important reason for the
Indians’ catastrophic decline—namely, the spread of highly contagious diseases
to which they had no immunity. This phenomenon is known as a “virgin soil epidemic”;
in North America it was the norm and it resulted in staggering death rates. The most
lethal of the pathogens introduced into the New World by the Europeans was smallpox.
Sometimes this disease incapacitated so many adults, including hunters, at the same
time that as many tribesmen died of hunger and starvation as of the disease itself.
In several cases entire tribes became extinct. Other killers included measles,
influenza, whooping cough, diphtheria, typhus, bubonic plague, cholera and scarlet
fever. Although syphilis was apparently native to parts of the western hemisphere,
it, too, was probably introduced into North America by Europeans.[45]
There is some disagreement about the number of the various epidemics that decimated
the Indian populations, about the timing of their impact, and the extent of their
spread. Population declines varied in different regions.[46] However, the basic facts about the mortality caused by disease
are unquestioned. The most hideous enemy of Native Americans was not the white man
and his weaponry, concludes Alfred Crosby, “but the invisible killers which those
men brought in their blood and breath.”[47]
It is estimated that between 75% and 90% of all Indian deaths were the result of
epidemic disease.[48] Ann Ramenofsky speaks of
“a minimal population loss of 90% from all introduced disease.”[49]
To some this is enough in itself to warrant the term genocide. David Stannard has
insisted that the Indians who died of introduced disease “were as much the victims
of the Euro-American genocidal war as were those burned or stabbed or hacked or shot
to death, or devoured by hungry dogs.” The Jews who died of disease and starvation
in the ghettos, he argues, are counted among the victims of the Holocaust. In the
same way, the native people of the Americas died “in vastly higher numbers and
proportions, directly as a result of the larger genocidal conditions created by
violent European invasions of their communities.” As an example of such genocidal
conditions Stannard refers to the Franciscan missions in California which he calls
“furnaces of death.”[50]
|
| |
There are several problems with this argument. It is true that the cramped quarters of the
missions, with their poor ventilation and bad sanitation, encouraged the spread of
disease, but unlike the Nazis, whose intentions were anything but benevolent, the
missionaries were sincerely concerned for the welfare of their native converts. Labour was
obligatory, food and medical care were often inadequate, and, in conformity with
prevailing norms, there was corporal punishment. [51]
However, none of this can compare with the fate of the Jews in the ghettos. The
missionaries had an inadequate understanding of the causes of the diseases that afflicted
their charges, and, given the state of medical knowledge, there was little they could do
for them. By contrast the Nazis knew exactly what was happening in the ghettos, but quite
deliberately deprived the Jewish inmates of both food and medicine. Unlike in Stannard’s
“furnaces of death,” the deaths that occurred there were meant to occur.
The larger picture also does not conform to Stannard’s idea of disease as an expression
of “genocidal conditions.” True, the forced relocations of Indian tribes was often
accompanied by great hardship and harsh treatment; the removal of the Cherokee from their
homelands to territories west of the Mississippi in 1818 took the lives of thousands and
has entered history as the “Trail of Tears.” However, the largest loss of life
occurred well before the creation of the reservations, and some of the most severe
epidemics hit the Indians after minimal contact with European traders. Later, some
colonists welcomed the large number of deaths and saw them as a sign of divine blessing
that made the land of the natives available to them, but this does not change the basic
fact that the Europeans did not come to the New World in order to infect the Indians with
deadly diseases.
Ward Churchill not only agrees with Stannnard that the deaths from alleged “natural
causes” must be considered part of the overall pattern of genocide against the Indians,
but takes the argument a step further by charging a policy of biological warfare. The
waves of epidemic disease that afflicted the indigenous populations during several
centuries, he writes, “were deliberately induced, or at least facilitated, by the
European invaders.” There was nothing unwitting or unintentional about the way the great
bulk of North America’s native population disappeared. “It was precisely
malice, not nature, that did the deed.”[52]
We do know of one instance of biological warfare against the Indians. In 1763, a
particularly serious Indian uprising threatened the British garrisons west of the
Allegheny Mountains. Sir Jeffrey Amherst, commander-in-chief of British forces in North
America, concerned about his limited resources to put down the rebellion and disgusted by
what he saw as the Indians’ treacherous and savage mode of warfare, wrote to Colonel
Henry Bouquet at Fort Pitt: “You will do well to try to inoculate the Indians [with
smallpox] by means of blankets, as well as to try every other method, that can serve to
extirpate this execrable race.” It is not clear whether Bouquet carried out Amherst’s
suggestion, though we know that he approved of it. It is documented that on or around June
24, 1763, two traders at Fort Pitt gave two visiting Delaware Indians two blankets and a
handkerchief from the fort’s quarantined hospital. One of the traders, William Trent,
noted in his journal: “Out of regard we gave them two blankets and a handkerchief out of
the smallpox hospital. I hope it will have the desired effect.” Smallpox was already
present among the tribes of Ohio, but some time after this episode there was another
outbreak and hundreds of Indians died.[53]
During the Yorktown campaign of 1781, a British officer sent 300 smallpoxinfected blacks
to the rebel plantations, and there may have been other instances where the British
deliberately used smallpox as a weapon of war.[54]
However, apart from Fort Pitt in 1763, no other cases of the deliberate use of smallpox
against Indians have been recorded. The allegation of Ward Churchill that the US Army
deliberately distributed smallpox-infected blankets to Mandan Indians in 1837[55] is a fabrication, unsubstantiated by any evidence. This instance of
academic fraud was one of several cited by the Standing Committee on Research Misconduct
at the University of Colorado, and led the Interim Chancellor of the University to
announce on June 26, 2006 the initiation of dismissal proceedings against Churchill.[56]
|
|
The allegation that agents of the US government intentionally infected Indian tribes
with smallpox is also at odds with the attempts of the federal government to
vaccinate the Indian population. Vaccination against smallpox was developed by the
English country doctor Edward Jenner in 1796, and in 1801 President Jefferson
ordered the first Indians to be vaccinated. During the following three decades, this
programme continued, though implementation was slowed by the resistance of the
Indians, who suspected a trick, and by the lack of interest on the part of some
officials. Still, as Thornton writes: “Vaccination of American Indians did
eventually succeed in reducing mortality from smallpox.”[57]
The charge that the US government should be held responsible for the demographic
disaster that overtook the American Indian population as a result of various deadly
epidemics is thus unsupported by any valid argument or evidence. The United States
did not wage biological warfare against the Indians; neither can the large number of
deaths experienced by Native Americans as a result of disease be considered the
result of a genocidal design. European settlers came to the New World for a variety
of reasons, but the idea of infecting the Indians with deadly pathogens was not one
of them. The experience of the American Indians thus calls into question the notion
that it is possible to determine the occurrence of genocide by looking at results
and consequences. The crucial role of disease in the decimation of the Indian
population drives home the point that a huge death toll in and by itself is not
proof of malfeasance or genocide. The stress of the Genocide Convention on
intentionality is not a mere legalism.
Is there other evidence to support the charge that American Indians were the victims
of genocide? Perhaps there is, though this evidence does not implicate the national
government and involves massacres of small groups of Indians rather than the Indian
people as such. The treatment of Native Americans by European settlers was often
callous and brutal. Settlers on the expanding frontier treated the Indians with
contempt, often robbing and killing them at will. In California especially,
volunteer militias and vigilante groups at times displayed a flagrantly
exterminatory mentality and murdered large numbers of Indians.
The Genocide Convention outlaws the destruction of a group “in whole or in part,”
but does not address the question of what percentage of a group must be affected by
the destructive acts enumerated in the convention to trigger the crime of genocide.
The prosecutor of the International Criminal Tribunal for the Former Yugoslavia has
declared that the definition requires “a reasonably significant number, relative
to the total of the group as a whole,” though he added that the actual or
attempted destruction should relate to “the factual opportunity of the accused to
destroy a group in a specific geographic area within the sphere of his control, and
not in relation to the entire population of the group in a wider geographic sense.”[58] The trial chamber in the Krstic case,
involving the wholesale killing of Bosnian Muslims in Srebrenica, ruled that “although
the perpetrators of genocide need not seek to destroy the entire group protected by
the Convention, they must view the part of the group they wish to destroy as a
distinct entity which must be eliminated as such.”[59] If this principle is adopted, an atrocity such as the Sand Creek
massacre of November 29, 1864 during which a volunteer regiment of Western settlers
attacked an Indian village and killed large numbers of women and children, even
though limited to one group in a specific single locality, could be considered an
act of genocide. Still, it is well to remember that a far larger number of Indians
died from the epidemic diseases unintentionally introduced and spread by the white
man than from outright violence. As the historian Francis Jennings has observed: “Not
even the most brutally depraved of the conquistadores was able purposely to
slaughter Indians on the scale that the gentle priest unwittingly accomplished by
going from his sickbed ministrations to lay his hands in blessing on his Indian
converts.”[60]
|
| |
Conclusion
Intentionality is an important element in domestic law. The difference between homicide
and murder, for example, turns on the degree of intent that is present in the act of
taking life. The negligent killing of a pedestrian by a motorist is not the same as a
deliberate assault that aims at the death of the victim. In the same way, I have argued in
this essay, there is every reason not to ignore the role of intent in what is often called
“the crime of crimes”—the destruction of an entire group of people or genocide.
Proof of specific intent is necessary to find an individual guilty of genocide, and the
role of intent is similarly crucial when the historian assesses an episode of mass death
that occurred in the past. A large loss of life should be the point of departure for a
searching investigation to determine responsibility, but in and by itself it should never
be sufficient for a finding of genocide. The disregard of intentionality will create an
incomplete or distorted picture and lead to false conclusions.
In the absence of a confession, the establishment of intent in mass deaths that occurred
in the past is often difficult. Yet many times genocidal intent can be inferred from
factors such as the scale of the atrocities committed or the deliberate targeting of
victims on account of their membership in a particular group. “The emphasis on intent is
important,” Kurt Jonassohn has correctly noted, “because it removes from consideration
not only natural disasters but also those manmade disasters that took place without
explicit planning. Many of the epidemics of communicable diseases that reached genocidal
proportions, for example, were caused by unwitting human actions.”[61] To the victims it makes no difference whether they died because of a
deadly epidemic or as a result of a planned programme of destruction. It does make a
difference for the assignment of responsibility and guilt and, more importantly, for
historical truth.
|
Notes and References
|
1. The Genocide Convention was signed on
December 11, 1948, and came into force on January 12, 1951. For the text see: United
Nations, Secretariat, Treaty Series, Vol 78, 1951, pp 277ff.
2. Alexander K. A. Greenawalt, “Rethinking
genocidal intent: the case for a knowledge-based interpretation,” Columbia Law
Review, Vol 99, No 8, 1999, p 2264.
3. Nehemiah Robinson, The Genocide
Convention: A Commentary (New York: Institute of Jewish Affairs, 1960), pp
58-59.
4. William A. Schabas, Genocide in
International Law (Cambridge: Cambridge University Press, 2000), p 245.
5. Greenawalt, “Rethinking genocidal
intent,” p 2278.
6. Robinson, Genocide Convention,
p 60.
7. Schabas, Genocide, p 255.
8. Resolution of Ratification adopted by
the US Senate on February 19, 1986, and Title 18, Part I, Chap. 50A, § 1091, both
quoted in Lawrence J. LeBlanc, The United States and the Genocide Convention
(Durham, NC: Duke University Press, 1991), pp 253, 255.
9. Matthew Lippman, “The Convention on
the Prevention and Punishment of the Crime of Genocide: fifty years later,” Arizona
Journal of International and Comparative Law, Vol 15, No 1, 1998, pp 464-466.
10. Schabas, Genocide, p 214.
11. Quoted in William A. Schabas, “Was
genocide committed in Bosnia and Herzegovina? First judgments of the International
Tribunal for the Former Yugoslavia,” Fordham Journal of International Law, Vol
25, No 1, 2001, pp 49-50.
12. Krstic (IT-98-33-T),
Judgment, August 2, 2001, para. 572, www.un.org/icty/cases-e/index-e.htm. See also:
John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (Chicago:
University of Chicago Press, 2003), p 172.
13. Krstic (IT-98-33-T),
Judgment, April 19, 2004, para. 275, www.un.org/icty/cases-e/index-e.htm. See also:
Schabas, “Was genocide committed in Bosnia?,” New York Times, April 20,
2004. In a paper presented at a conference in Yerevan, Armenian, in April 2005, “The
‘odious scourge’: evolving interpretations of the crime of genocide,” Schabas
has characterized recent attempts to broaden the concept of genocide by including
“aiding and abetting” genocide or “complicity” in genocide as “not exactly
elegant in their legal reasoning” (p 16).
14. Cited by Martin Mennecke and Eric
Markusen, “The International Criminal Tribunal for the Former Yugoslavia and the
Crime of Genocide,” in Steven L. B. Jensen, ed., Genocide: Cases, Comparison
and Contemporary Debates (Copenhagen: Danish Center for Holocaust and Genocide
Studies, 2003), p 336.
15. Jelisic (IT-95-10-T),
Judgment, December 14, 1999, para. 139, www.un.org/icty/cases-e/index-e.htm. The
judgment can also be found in Andre´ Klip and Go¨ran Sluiter, eds, Annotated
Leading Cases of International Criminal Tribunals, Vol 4: The International
Criminal Tribunal for the Former Yugoslavia 1999-2000 (Antwerp: Intersentia,
2002), pp 669-697.
16. Akayesu ((ICTR-96-4-T),
para. 523-24, http://ictr.org. See also: Schabas, Genocide, pp 222-223, and L. J.
van den Herik, The Contribution of the Rwanda Tribunal to the Development of
International Law (Leiden: Martinus Nijhoff, 2005), pp 110-112.
17. Isidor Walliman and Michael N.
Dobkowski, introduction to Genocide and the Modern Age: Etiology and Case Studies
of Mass Death (New York: Greenwood Press, 1987), p xvi.
18. Tony Barta, “Relations of
genocide: land and lives in the colonization of Australia,” in Walliman and
Dobkowski, Genocide and the Modern Age, p 238.
19. Barta, “Relations of genocide,”
pp 247-248.
20. Ibid, p 240.
21. Frank Chalk, “Redefining
genocide,” in George Andreopoulos, ed., Genocide: Conceptual and Historical
Dimensions (Philadelphia: University of Pennsylvania Press, 1994), pp 56-57.
22. Office of the United States Chief
of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression:
Opinion and Judgment (Washington, DC: GPO, 1947), p 53.
23. The full text of the judgment can
be found on the Court’s website www.icj-cij.org.
24. Henry R. Huttenbach, “Locating
the Holocaust on the genocide spectrum: towards a methodology of definition and
categorization,” Holocaust and Genocide Studies, Vol 3, No 3, 1988, pp 294,
297.
25. John Collier, Annual Report of
the Secretary of the Interior (Washington, DC: GPO 1938), p 209, quoted in
Wilcomb E. Washburn, ed., The Indian and the White Man (Garden City, NY:
Anchor Books, 1964), p 393.
26. Helen Hunt Jackson, A Century
of Dishonor: A Sketch of the United States Government’s Dealings with Some of the
Indian Tribes (Boston: Roberts Brothers, 1888).
27. Ward Churchill, Indians are Us?
Culture and Genocide in Native North America (Monroe, ME: Common Courage Press,
1994), p 38; Ward Churchill, A Little Matter of Genocide: Holocaust and Denial in
the Americas, 1492 to the Present (San Francisco, CA: City Lights Books, 1997),
p 4.
28. David E. Stannard, American
Holocaust: The Conquest of the New World (New York: Oxford University Press,
1992), p 146.
29. Lenore A. Stiffarm and Phil Lane, Jr.,
“The demography of Native North America: a question of Indian survival,” in M.
Annette Jaimes, ed., The State of Native America: Genocide, Colonization, and
Resistance (Boston: South End Press, 1992), p 37.
30. Pap Ndiaye, “L’extermination
des Indes d’Ame´rique du Nord,” in M. Ferro, ed., La livre noir du
colonialisme (Paris: Robert Laffon, 2003), p 57.
31. Yehuda Bauer, “Comparison of
genocide,” in Levon Chorbajian and George Shirinian, eds, Studies in
Comparative Genocide (New York: St. Martin’s Press, 1999), p 38.
32. Jay David, The American Indian:
The First Victim (New York: William Morrow, 1972), p 89.
33. Richard Drinnon, Facing West:
The Metaphysics of Indian-Hating and Empire-Building (Minneapolis, MN:
University of Minnesota Press, 1980), p 459.
34. Robert Lerner et al., Molding
the Good Citizen: The Politics of High School History Texts (Westport, CT:
Praeger, 1995), p 152.
35. Quoted in Jose´ Barreiro, “View from
the shore: toward an Indian voice in 1992,” Northeast Indian Quarterly, Vol
7, No 3, 1990, p 16.
36. Kirkpatrick Sale, The Conquest
of Paradise: Christopher Columbus and the Columbian Legacy (New York: Alfred A.
Knopf, 1990), pp 281-282.
|
| |
37. Churchill, “Genocide of native
populations in the United States,” in Israel W. Charny, ed., Encyclopedia of Genocide
(Santa Barbara, CA: ABC-Clio, 1999, Vol 2), p 436.
38. Ben Kiernan, “The genocide of Native
Americans,” Bangkok Post, July 29, 2001.
39. Brian W. Dippie, The Vanishing
American: White Attitudes and U.S. Indian Policy (Middletown, CT: Wesleyan University
Press, 1982), p xv.
40. Shepard Krech, The Ecological Indian:
Myth and History (New York: W. W. Norton, 1999), pp 83-84.
41. James Mooney, The Aboriginal Population of
America North of Mexico (Washington, DC: Smithsonian Institution, 1928), p 2.
42. Russell Thornton, American Indian
Holocaust: A Population History since 1492 (Norman, OK: University of Oklahoma Press,
1987), p 43.
43. Stiffarm and Lane, Jr., “The
demography of Native North America,” pp 27-28.
44. Henry F. Dobyns, Native American
Historical Demography: A Critical Bibliography (Bloomington, IN: Indiana University
Press, 1976), p 1. See also his Their Numbers Became Thinned: Native American
Population Dynamics in Eastern North America (Knoxville, TN: University of Tennessee
Press, 1983).
45. Krech, The Ecological Indian, p
91; E. Wagner and Allen E. Stearn, The Effect of Smallpox on the Destiny of the
Amerindian (Boston: B. Humphries, 1945), p 94; Karen Ordahl Kupperman, Settling
with the Indians: The Meeting of England and Indian Cultures in America, 1580-1640
(Totowa, NJ: Rowman and Littlefield, 1980), p 5.
46. Dean R. Snow and Kim M. Lanphear, “European
contact and Indian depopulation in the northeast: the timing of the first epidemics,” Ethnohistory,
Vol 35, No 1, 1988, pp 15-33.
47. Alfred W. Crosby, Jr., The Columbian
Exchange: Biological and Cultural Consequences of 1492 (Westport, CT: Greenwood Press,
1972), p 31.
48. Brenda Baker gives this figure for
southern New England in “Pilgrim’s progress and praying Indians: the biocultural
consequences of contact in southern New England,” in Clark Spencer Larsen and George R.
Milner, eds, In the Wake of Contact: Biological Responses to Conquest (New York:
Wiley-Liss, 1994), p 36. Estimates for other regions of the country yield a similar ratio.
See e.g. the case of the Kalapuya tribe on the northwest coast in James L. Ratcliff, “What
happened to the Kalapuya? A study of the depletion of their economic base,” The
Indian Historian, Vol 6, No 3, 1973, p 27.
49. Ann F. Ramenofsky, Vectors of Death:
The Archaeology of European Contact (Albuquerque, NM: University of New Mexico Press,
1987), p 171.
50. Stannard, American Holocaust, pp 137,
255, and “Uniqueness as denial: the politics of genocide scholarship,” in Alan S.
Rosenbaum, ed., Is The Holocaust Unique? Perspectives on Comparative Genocide
(Boulder, CO: Westview Press, 1996), p 179.
51. The standard work on the subject is
Sherburne F. Cook, The Conflict between the California Indians and White Civilization (Berkeley:
University of California Press, 1976). See also: James J. Rawls, Indians of California:
The Changing Image (Norman, OK: University of Oklahoma Press, 1984).
52. Churchill, A Little Matter of
Genocide, pp 2, 156, 151.
53. A. T. Volviler, “William Trent’s journal
at Fort Pitt, 1763,” Mississippi Valley Historical Review, Vol 11, No 4, 1924, p
400; Elizabeth Fenn, “Biological warfare in eighteenth-century North America: beyond
Jeffery Amherst,” Journal of American History, Vol 86, No 4, 2000, pp 1554-1558;
Gregory Evans Dowd, War under Heaven: Pontiac, the Indian Nations and the British
Empire (Baltimore, MD: Johns Hopkins University Press, 2002), p 190.
54. Fenn, “Biological warfare in
eighteenth-century North America,” pp 1572-1573, 1580.
55. Churchill, A Little Matter of
Genocide, p 155. The story of the “distribution of smallpox-infected blankets by the
U.S. Army to Mandans at Fort Clark” also appears in Stiffarm and Lane, Jr., “The
demography of Native North America,” p 32, and in Jaimes, State of Native America, p 7.
56. http://www.colorado.edu/news/reports/churchill/distefano062606.html.
57. Thornton, American Indian Holocaust,
p 101.
58. Quoted in Schabas, Genocide, p
237.
59. Krstic (IT-98-33-T), Judgment,
August 2, 2001, para. 590, www.un.org/icty/cases-e/index-e.htm. See also: William A.
Schabas, The UN International Criminal Tribunal: The Former Yugoslavia, Rwanda, and
Sierra Leone (Cambridge: Cambridge University Press, 2006), p 169.
60. Francis Jennings, The Invasion of
America: Indians, Colonialism and the Cant of Conquest (Chapel Hill, NC: University of
North Carolina Press, 1975), p 22.
61. Kurt Jonassohn, “What is genocide?,”
in Helen Fein, ed., Genocide Watch (New Haven, CT: Yale University
|
|
