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Criminalizing Mass Murder: 65 Years After The UN's First Condemnation Of Genocide

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On December 11, 1946, the United Nations General Assembly adopted Resolution 96 (I), which declared genocide, defined as "a denial of the right of existence of entire human groups," to be "a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices -- whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds -- are punishable."

This resolution was adopted in the shadow of the annihilation of approximately 6,000,000 European Jews as part of Hitler's "Final Solution of the Jewish Question," and less than two months after ten leaders of the Third Reich had been executed at Nuremberg for "crimes against humanity."

In addition to the Holocaust's Jewish victims, up to 220,000 Sinti and Roma were similarly killed during World War II, as were Polish intellectuals and Communist officials, among other targeted groups. Germany was not solely responsible for such atrocities. The collaborationist French authorities rounded up tens of thousands of Jews and deported them to their death, and the Nazi puppet regime in Croatia murdered hundreds of thousands of Serbs alongside Yugoslavia's Jews.

It was in this context that a Polish Jewish lawyer named Raphael Lemkin had coined the term genocide, by which he meant "the destruction of a nation or of an ethnic group," in his 1944 book, Axis Rule in Occupied Europe, "from the ancient Greek word genos (race, tribe) and the Latin cide (killing)." In a subsequent 1946 article, Lemkin broadened the meaning of genocide to also include religious and racial groups.

The need for such an expansion of the legal lexicon became clear after the full scope of the human devastation perpetrated by Nazi Germany had been laid bare before the International Military Tribunal at Nuremberg. "By implication," the New York Times declared in an editorial on August 26, 1946, "genocide has already been recognized as a distinct crime, with a distinct technique and distinct consequences. It now remains to incorporate the term in international law, which is what Professor Lemkin has already half accomplished."

Less than two-and-a-half years later, on December 9, 1948, the UN General Assembly completed this process by adopting the Convention for the Prevention and Punishment of the Crime of Genocide. Henceforth, the international community ostensibly committed itself "to prevent and to punish" a series of specific acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."

The Convention differs from, and is weaker than, the 1946 UN Resolution in that while it added "ethnical" entities to the protected groups, it no longer covers killings or persecutions committed on "political" or "other" grounds.

Unfortunately, the ambiguities inherent in such inconsistent characterizations of genocide have allowed for a sophistic intellectualization of the term. Professor Steven T. Katz of Boston University, for example, rejects the Convention's definition as simultaneously too narrow in scope -- he would include "political, social, economic, and gender victimization" -- and too broad -- he refuses to recognize as genocide anything less than the intended physical destruction of an entire given group. As far as he is concerned, any intent to kill only some members of such a group -- Bosnian Muslims in Serb-claimed territory as opposed to all Bosnian Muslims anywhere -- does not qualify. Thus, Professor Katz, who happens to be a friend of mine, recently told the New York Times that the massacres of Tutsis in Rwanda constituted only "mass murder."

I respectfully disagree. No survivor of any genocide deserves to have his or her suffering trivialized or belittled. It is simply unconscionable to suggest that Tutsis murdered in Rwanda solely because they were Tutsis, or Bosnian Muslim men and boys shot to death at Srebrenica by Serbian thugs for no reason other than their ethnicity, were any less the victims of a genocide than my grandparents and brother who were gassed at the Auschwitz-Birkenau death camp.

Genocide is not the only abomination made explicitly punishable in the wake of the Holocaust. Crimes Against Humanity, the once amorphous cause of action created in August of 1945 for the purpose of prosecuting major Nazi war criminals, have now been codified in the Statute of the International Criminal Court to include murder, extermination, torture, rape, and sexual slavery, among other specified offenses, "when committed as part of a widespread systematic attack directed against any civilian population, with knowledge of the attack." Such crimes against humanity also form the cornerstones, together with genocide and war crimes, of the statutes of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, as well as the law under which Khmer Rouge leaders are now being tried for atrocities committed in Cambodia by the Pol Pot regime between 1975 and 1979.

As we mark the 65th anniversary of the first formal recognition of genocide as a crime under international law, we should reflect on the progress we have made since the time when heads of governments and their acolytes believed that they could murder Jews, Roma and Sinti, Armenians, or members of other national, religious or ethnic groups with impunity. We must also keep in mind at all times that while posthumous justice for the victims of genocide is an important consideration, the most critical imperative of both Resolution 96 (I) and the Genocide Convention has always been the prevention of future carnages. One need only look at Darfur to realize that this goal is far from accomplished. We have indeed evolved since the end of World War II, but not yet enough to be considered truly civilized.

Menachem Z. Rosensaft, the son of two survivors of Auschwitz and Bergen-Belsen, is General Counsel of the World Jewish Congress and teaches about the law of genocide and World War II war crimes trials at Columbia Law School, Cornell Law School, and Syracuse University College of Law