The Odious Scourge of Genocide and the Limits of International Law: Part I

[Dimitrios Kourtis is a PhD candidate at the Aristotle University and a Research Associate and Adjunct Lecturer at the University of Nicosia.]

Genocide Disparities and Grotian Moments

International law has been credited for normalizing, theorizing, and proliferating several systemic injustices, being the ‘culprit and the remedy’(Stahn) of/for an imperialistic order premised on centers and peripheries (Anghie). Although, such statements offer a recapitulation of the use and abuse of international norms, it is beyond doubt that international law’s humanization process has been an arduous task and a very long journey with several ‘Grotian moments’ (Scharf), when international normativity achieved to place symbolic shackles on the primordial Leviathan of state sovereignty.

The problem of taming the unruly narcissistic beast we call state is particularly obvious when we decide to deal with past atrocities, i.e. instances of mass violence or flagrant breaches of what we nowadays consider fundamental and inalienable human rights. Historicism, an odd sense of antiquarianism, and the all-inclusive attempt to re-interpret international law so as to surpass the Westphalian Clashing Rocks of inter-temporality (see Elias), i.e. the doctrine according to which an act or omission needs to be assessed based on the legal norms in force at the time of commission/perpetration, knows certain boundaries. For instance, we can make an argument that during 1915-1919 there was an emerging international consensus that certain violations of the principles of humanity and the dictates of public conscience as enshrined in the Martens clause were seen by the European Powers as matters of international concern and were subsequently approached as crimes of a certain international status; this happened with the atrocities against the Christian communities of Anatolia and especially Armenians at –to a lesser extent– Greeks by the 1915 Tripartite Declaration of the Triple Entente, the Majority Report of the Commission of the Fifteen, and the Treaty of Sevres.

It has been a common intellectual topos between scholars of the international law on genocide that the crime stemmed from an umbrella concept of crimes against humanity (see Schabas 32; Kress 575-576; Ambos II 1; Quigley 13; Fournet 72; more generally Salter/Eastwood), which was re-branded and singled-out by Lemkin in his Axis Rule in Occupied Europe and subsequently recognized as a separate and distinct international crime by the United Nations under Resolution 96(I) and finally under Resolution 260A(III) that brought to life the Genocide Convention. The Convention became the gospel of international prevention and punishment of the crime, while at the same time the very essence of genocide acquired a strong extra-legal connotation. The Holocaust as a rupture of civilization and the pre-conventional genocide par excellence (see Moses) contributed to the establishment of a vivid scholarly community of genocide studies, where the legal perplexities of the crime are but a point of departure or remain irrelevant, a situation that can be described as a ‘schism of genocide’ (van den Herik). The attempts to re-conceptualize the crime and bring it a bit closer to the so-called social conception of genocide have dramatically failed. Article II of the Genocide Convention, what we may call the fundamental sanctioning norm, as part of treaty law can validate as genocides only those genocidal moments, to use the term introduced by Prof. Dirk Moses, that have taken place after the entering into force of the Convention (12 January 1951) or at least after the adoption of the relative treaty (9 December 1948) or – as per some international practice – after the adoption of the of the very first UNGA Resolution on Genocide (11 December 1946).

As a result, we may discern two different turning points; the 1915-1919 period when an anonymous crime against humanity and civilization started to emerge from the bloodsheds taken place in Anatolia and the 1946-1951 period when the crime was named, recognized, and penalized by international legislation. What has taken place between these two periods, or ‘Grotian moments’, remains in the grey area between law and political power, with the Holocaust being beyond doubt accepted as both the original genocide and a unique instance of international illegality. But, what happens when the fundamental sanctioning norm is used as a prism to re-interpret atrocities past and use the g-word to describe them or, even more, establish a set of claims for reparations, despite the fact that genocide did not exist either as a term of art or a legal concept during the time of perpetration?

The Concept of Genocide

The so-called Whitaker Report of 1985 tried to accommodate these anxieties through introducing a separate idea, the concept (re-conceptualization) of genocide, which seemingly covered all instances of colonial mass violence that are today understood as part and parcel of the non-legal notion of genocide, including the atrocities against the indigenous peoples across the globe. This concept was not further elaborated in the Report but is a re-occurring pattern (Schabas; Boghossian; Schabas Commentary; Lang). The hard truth is that we cannot (re-)conceptualize genocide outside the realm of international law. Genocide is a subject of study primarily because at some point this practice was recognized as catastrophic for the international community and was penalized with what might be described as an imperfect piece of international legislation. The Genocide Convention is an outstanding proof that international law can only do so much as an intellectual phenomenon. In order to actively re-conceptualize genocide and raise a claim for actual reparations based on the said re-conceptualization (including for instance the colonial genocide of the Herero and Nama indigenous communities, the genocidal massacres and persecutions of the Christian populations in Anatolia or other incidents of imperialistic mass violence), we need hard law and this law can only stem from the matrix of international customary law, given the inability of the international community to revise or supplement the Genocide Convention.

As previously discussed there may be an emerging trend to deal with such genocidal atrocities, historically proven to fit the conditions set by the fundamental sanctioning norm, as genocides eo nomine, only to assert the obligation to prevent genocide from happening again and to respect the memory of the victims or at least the dignity of the descendants of the victimized community, who as well might be considered trans-generational victims of the original atrocity. However, this trend is lacking in both consistency and clarity to be considered as constitutive of international custom. For instance, during the Spring of 2021 both Latvia and the United States recognized the Armenian Genocide as such, with the Latvian resolution placing the Armenian genocide claim in legal context and invoking the Genocide Convention, whereas the presidential statement of the United States gave only a historical account of the Armenian case. A few weeks later, Germany officially recognized the Herero and Nama colonial massacres as genocide‘from today’s perspective’ and offered development aid instead of reparations, claiming that the recognition of genocide as such rests in the field of political morality or historical truth-seeking rather than in the realm of international law (Kopp); thus reparations cannot be offered as such; this position basically states that the acceptance of the genocide claim has taken place only to appease local or international audiences, so it is ostensible and has zero precedential value. This line of thought and the respective arguments are valid in terms of the traditional doctrines of international law as aptly described by the Lotus judgment (18); ‘Restrictions upon the independence of States cannot […] be presumed’, so Germany – lacking a prohibitive rule to the contrary – remains at absolute liberty to conceptualize as genocide whichever colonial atrocity sees fit without providing reparations, an obligation that stems from the perpetration of an internationally wrongful act; ergo a state can accept moral, historical, or political responsibility through recognizing that its colonial authorities perpetrated genocide (from the post-conventional point of view), while denying that this acceptance has any consequences from the viewpoint of international law, since there is no rule prohibiting such a conduct.