On 'Genocide': Its Uses and Abuses

Words matter

A part of Tokyo, shortly after the Operation Meetinghouse raid, March 1945

I know there is a God, because in Rwanda I shook hands with the devil. I have seen him, I have smelled him and I have touched him. I know the devil exists and therefore I know there is a God.

-Lt. Gen. Romeo Dallaire, Force Commander of UNAMIR

The night of 9th-10th March 1945 saw the deadliest single air raid in the entirety of WWII, and, therefore, the deadliest in history. A total of 334 B-29 bombers took off on the raid; 279 made it to Tokyo, where they delivered a payload of 1,665 tons of bombs - most of which contained napalm or white phosphorus. The result was a conflagration which swept through Tokyo’s densely packed working class neighbourhoods, where the housing - as was traditional in Japan, for climatic reasons - was almost entirely made of wood. It is generally thought that around 100,000 people died in the resultant fire (more than were killed by the atomic bomb dropped on Hiroshima).

That was a single night. A few days later, on 13th March, another 5,000 Japanese civilians were killed in a firestorm in Osaka. On the 16th of March, it was Kobe’s turn; 8,000 civilians died in that raid. And so on, and so forth, city after city, for the entire spring and summer. Kyoto alone escaped major damage (the Americans recognised its status as one of the great treasures of human civilization); all of the rest of Japan’s cities of any significant size were essentially levelled. The consensus is that something like 350,000 Japanese civilians were killed in the strategic bombing campaign of 1945; the number made homeless is not known, but certainly reaches the millions. Many of these subsequently starved. (For anyone who enjoys being made to weep copiously, the 1988 film Grave of the Fireflies gives an exceptionally moving insight into what went on in Kobe during that time.)

The morality of the strategic bombing of Japan during WWII is a fraught topic. The Allies did what they felt they had to, and it is important to remember that by 1945 the Americans had been fighting for four bitter years against an implacable foe who they were well aware itself showed no compunction about the murder of civilians en masse. Still, there is no question that nowadays that kind of war simply could not be fought. The public in America would not allow it. More importantly, perhaps, neither would the law. Allied conduct in the arena of strategic bombing doesn’t even come close to being consonant with the contents of the Geneva Conventions (which anyway came into effect after the war itself); reasonable people can disagree over whether the ends justified the means, but as far as the modern law is concerned, there would simply be no debate. Indiscriminate bombing of civilians is a war crime, QED.

But what the strategic bombing campaign against Japan most certainly was not, was a genocide. Genocide is a word that is often bandied about nowadays. But it has a strict legal definition, stemming from the fact that the Allies - as should really be clear to anybody - knew that there was something about the Holocaust that elevated it to a special category of immorality. The victors of WWII were exceptionally hard-nosed people, and they had witnessed (and perpetrated) mass-murder on a colossal scale. But there is something about the Holocaust that truly shocks the conscience in a way that ‘mere’ (the word seems silly) mass-murder does not. Indiscriminate slaughter of civilians is bad enough, of course. But deliberately killing people simply and only because of who they are is something else. The former requires a certain callous disregard for individual lives. But the latter requires a contempt, even a hatred, for human life itself, and truly therefore merits the label of evil.

The 1948 Genocide Convention therefore defines Genocide not as ‘mere’ mass-murder or indiscriminate killing, but as:

[A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

The operative words there are highlighted: genocide requires the intent to destroy an entire group as such. The latin phrase that international lawyers use here is dolus specialis, literally meaning ‘special deceit’, but in this context meaning the intention to actually inflict the particular harm in question. Indiscriminate slaughter is not enough. The perpetrator must be clearly seeking to destroy the group as a group, in whole, or in a recognised and identifiable part.

There have been two instances in history in which courts have been able to put flesh on the bones of this definition: the aftermaths of the Rwandan genocide of 1994 and the Srebrenica massacre of 1995.

It is difficult now to remember the heady days of the mid-late 1990s, but to cut a long story short, at that time there was an unprecedented (and, with hindsight, probably never-to-be-repeated) window of opportunity within which international law could develop. The Cold War was over, Russia and China were both for different reasons in a warm(ish) frame of mind towards the West, and the UN Security Council could as a result actually do things. Two such things were the establishment of special international courts to try accused war criminals in, respectively, Rwanda and the Former Yugoslavia, the idea being that this was the only way that such suspected criminals could get a fair trial or indeed be tried at all. (It seeming likely that if one left it to national courts in, say, Serbia or Rwanda, then perpetrators would either be let off or face a biased prosecution.)

The first successful conviction for the crime of genocide in history was handed down by the International Criminal Tribunal for Rwanda (ICTR) in the case of Prosecutor v Akayesu. Jean-Paul Akayesu had in 1994 been mayor of the commune of Taba, and during the genocide he supervised the murder of hundreds of Tutsis there, as well as the systematic rape of Tutsi women in local government offices. (Reading the accounts of some of the crimes committed in Taba at his behest truly brings home how far into the depths of depravity human beings are capable of sinking.) The ICTR, in its judgment (at para. 521), gave the following elaboration on what the dolus specialis for genocide required:

In concrete terms, for any of the acts [mentioned in the Genocide Convention] to be a constitutive element of genocide, the act must have been committed against one or several individuals, because such individual or individuals were members of a specific group, and specifically because they belonged to this group [emphasis added]. Thus, the victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself [emphasis added] and not only the individual.

This is important, because it helps explain what is meant by the dolus specialis in this context. Clearly, there have been many episodes in history in which people have been massacred, and very often the victims of a massacre will all be members of one ‘group’ which could be thought to be a part of a bigger whole. (One thinks, to use a familiar example, the My Lai massacre, whose victims were of course all Vietnamese.) But this is not sufficient to qualify as an act of genocide. Genocide requires that the acts in question were intended to realise an ‘ulterior motive’, which is the destruction of the entire group as such - the acts must have been part of a ‘general context of the perpetration of other culpable acts systematically directed against that same group’ (para. 523). Again, to resort to the use of an unsatisfactory word, ‘mere’ massacre is not genocide. Genocide is directed at ‘the very foundation of the group’, and acts of genocide are done knowingly as part of a broader pattern.¹

The International Criminal Tribunal for the Former Yugoslavia cast further light on this in its decision (in its Appeal Chamber) in Prosecutor v Krstic. Radislav Krstic was a Major-General in the army of the Republika Srpska, the political entity of the Bosnian Serbs during the Bosnian War, and Commander of the Drina Corps, whose soldiers systematically murdered around 8,000 Bosnian Muslim men at Srebrenica in July 1995. Krstic’s defence, when he was tried for genocide, was partly that the crimes that had been committed at that time were not ‘big enough’, as it were, to qualify as having been genocidal. He was just one commander, and his men had killed a comparatively small number of people, all of whom had been male. He therefore couldn’t have been intending to destroy ‘the group’ as such, since the people killed had just been a small subset of the whole (i.e. Bosnian Muslims). Simply put, 8,000 men could not meet the threshold of being ‘whole or part’ of a group given that the group in question - Bosnian Muslims - was well over a million strong.

The ICTY found otherwise. But the Tribunal made clear that genocide could not mean simply killing some number of people who happened to be members of a particular group and therefore in that sense constituted ‘part’ of it. If that was the case any act of murder could be construed as genocidal. The ‘part’ in question meant a distinct part in a distinct area. Hence (at para. 8):

[T]he part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole.

It went on (at para. 12):

The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point [but] the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition [the targeted population’s] prominence within the group can be a useful consideration.

So, while 8,000 Bosnian Muslim men in Srebrenica constituted a relatively small part of the total number of Bosnian Muslims, the symbolic and strategic importance of destroying the Muslim population of Srebrenica went to the very foundations of Bosnian Islam and it was this that elevated the intention of the act to that of genocide:

Although this population constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size…Srebrenica (and the surrounding Central Podrinje region) were of immense strategic importance to the Bosnian Serb leadership. Without Srebrenica, the ethnically Serb state of Republica Srpska they sought to create would remain divided into two disconnected parts, and its access to Serbia proper would be disrupted. The capture and ethnic purification of Srebrenica would therefore severely undermine the military efforts of the Bosnian Muslim state to ensure its viability…Control over the Srebrenica region was consequently essential to the goal of some Bosnian Serb leaders of forming a viable political entity in Bosnia, as well as to the continued survival of the Bosnian Muslim people. Because most of the Muslim inhabitants of the region had, by 1995, sought refuge within the Srebrenica enclave, the elimination of that enclave would have accomplished the goal of purifying the entire region of its Muslim population.

The point then was that, although the number of people killed was comparatively small, the intention of the perpetrators went beyond simply killing people. It went to the foundations of the group itself.

Another way of putting all of this is that words matter. Superficially, of course, they matter because, without a sense that words can be defined and have actual meanings, the entire edifice of law itself simply collapses; there could be no agreement on what the rules even meant. This in itself is obviously important. But more deeply, words matter because morality matters, and because behaviour matters, and without a connection between words and the underlying reality of morality and behaviour, we lose the ability to make sense of that underlying reality itself. If we are not clear in our heads about what we mean when we say ‘genocide’, then discerning the difference between what the Allies did in Japan during WWII and a series of events like the Holocaust becomes extremely difficult, if not impossible; all we are able to do, in essence, is emote. Why was the firebombing of Japan so different to the destruction of European Jewry? When we know what genocide means, are familiar with its contours, and understand why it is different and why it is evil, the answer is clear. When we don’t, the waters get very muddy.

We can catch a glimpse of the potential dangers here by examining the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People’s ongoing efforts to normalise the description of what is currently happening in Gaza as a genocide (a project which is going on across much of the UN apparatus). On Tuesday 12th December 2023 the Committee indeed convened a panel on the subject of ‘The Responsibility to Prevent Genocide’ in Gaza (the event was recorded and is viewable here), framing the event with a slovenly - one is tempted to call it openly misleading - reference to ‘Jewish civil society groups’ and ‘Holocaust and genocide scholars’ who apparently support the view that a genocide is at risk of unfolding in Palestine.

It cannot be denied that what is happening in Gaza is terrible, and one’s heart of course goes out to the innocent people who are caught up in the conflict. But one must remember - and I reiterate - that words matter, and that they matter because they allow us to make sense of the underlying reality. The necessary corollary of this notion, of course, is that where words are treated as though they don’t matter, or where they are used in a deliberately obfuscatory or meretricious way, they can have the opposite effect, and sew only confusion. This is a big problem when morality is at stake, as it certainly is here.

Nobody should be in any doubt about what is going on when UN Committees use language in the way that they are doing. By speaking as though the killing of civilians (which undoubtedly, and of course regrettably, has happened in large numbers - as it always does in modern war) is in itself ‘genocidal’, then it is brought by necessity into the same moral category as the most terrible events of the 20th century - the Armenian, Rwandan and Cambodian genocides, and, of course, the Holocaust itself. And the people who use the term in that way do so quite deliberately, and for that very reason: it puts Israel into a position of special opprobrium, and thus in their minds helps to further the cause of Palestinian statehood.

But this leaves our ability to understand the morality of the matter critically weakened. There is a hugely important distinction to be drawn between the deaths of civilians happening as a byproduct of armed conflict (i.e., ‘collateral’ to it) and the deaths of civilians who are systematically murdered simply by dint of their being part of a group - for being the wrong type of person as such. The former of these is tragic, in the proper sense of the term, in that even with the best of intentions in wartime it cannot be prevented. The latter is, frankly put, evil. And this distinction means something. It means something in law, of course, as the definition of genocide (the real definition of genocide, applied by the ICTR and ICTY) shows; and it also means something morally. If we lose sense of it, we are in a dangerous place, because we thereby lose a clearheaded idea of what is at stake in war, and what the difference between good and evil actually looks like.

I do not mean to suggest by this that I think Israel’s actions in Gaza to be good. But I do mean to suggest that by thinking about the meaning of words clearly we can thereby better identify evil. And here, it is worth re-emphasising a point that I have made elsewhere about the events of October 7th, 2023.

It is this: whatever one thinks about what has happened in the months since, the attacks perpetrated by Hamas on that day ought to have shocked the conscience of more people more thoroughly than it has. What we were given a glimpse of that morning was the naked intentions of that organisation, expressed in the clearest terms: the massacre of Jews wherever they could be found, and carried out in the most sadistic manner possible. And we therefore saw what would happen, at vastly greater scale, if ever indeed Palestine were to become ‘free from the river to the sea’ (which means, for the avoidance of doubt, the destruction of Israel).

Did the actions carried out that day meet the definition of genocide as I earlier laid it out? I’m not sure, but what I am sure about is that the only thing that stands in the way of groups like Hamas and the perpetration of such attacks against the entire Jewish population of Israel is the State of Israel itself and its security apparatus. While the acts carried out that day do not perhaps quite meet the definition of genocide following the rationale of the judgment in Krstic, then, one can have no doubt that the intention at least - the dolus specialis - is alive and well in the hearts of Hamas’s leaders and members. The recognition of this ought to chill anybody who knows anything about the history of the Jewish people to the bone. And that it apparently doesn’t for a great many people suggests that the blurring of the lines between the IDF’s actions in Gaza and the events of the Holocaust through the careless usage of the word ‘genocide’ is indeed having its intended effect.

This should concern us very much. It should concern us vis-a-vis the situation in Israel and Palestine. But it should also concern us with regard to our society’s own ideas about what good and evil actually look like. A society which does not understand the moral distinction to be drawn between the IDF’s campaign in Gaza (or even the firebombing of Tokyo) and the Holocaust, and which uses the same word - ‘genocide’ - to describe those events, is a society which is simply not serious about morality at all. It is a society which does not understand the difference between tragedy and hatred, or the moral implications of either. This, it goes without saying, does not bode well; sooner or later we will I think see the consequences of this lack of seriousness play out, and when it does we will have cause to regret it.

1. This is why the crime’s definition includes acts other than killing, but which if carried out systematically could have the result of destroying an entire ethnic, national, or religious group. It may be worth mentioning here that the inclusion of ‘Causing serious bodily or mental harm to members of the group’ in the definition was designed to address the enslavement and imprisonment in concentration camps of populations during the War, which did not necessarily result in the deaths of all victims.