Is “Structural Genocide” Legally Genocide? A Response to Hinton

Is “Structural Genocide” Legally Genocide? A Response to Hinton

When Telford Taylor was planning the trial programme for the Nuremberg Military Tribunals (NMTs), he was faced with a dilemma concerning the Nazis’ pre-war mistreatment — legal and physical — of Jews and members of other despised groups. Unlike the London Charter, Control Council Law No. 10, the NMTs’ enabling statute, did not require crimes against humanity to be committed “in execution of or in connection with” war crimes or crimes against peace. Because there was no nexus requirement, Taylor knew that he could (at least in theory) charge Nazi defendants with purely peacetime crimes against humanity.

The possibility of such charges, however, concerned Taylor, his IMT predecessor Robert Jackson, and war-crimes officials in the American government. And they did so for a simple reason, as recorded in a flurry of memos exchanged between Taylor, Jackson, and those officials at the time: if the US prosecuted Nazis for crimes against humanity that had no connection to the war, the Soviets would undoubtedly claim that the US had committed similar peacetime crimes against humanity against its own Black population. After all, the US government had used the law for centuries to systematically persecute Black Americans and had committed unspeakable acts of violence against them. If that mistreatment differed from the Nazis’ mistreatment of Jews and other groups, it was a difference of intensity, not kind.

To his lasting credit, Taylor eventually charged purely peacetime crimes against humanity in two of the 12 NMT cases. None of those charges were successful, but they led the Justice tribunal (albeit only in dicta) to affirm their legitimacy, paving the way for the modern nexus-less understanding of crimes against humanity:

[T]he statute is limited by construction to the type of criminal activity which prior to 1939 was and still is a matter of international concern. Whether or not such atrocities constitute technical violations of laws and customs of war, they were acts of such scope and malevolence, and they so clearly imperiled the peace of the world that they must be deemed to have become violations of international law.

I recount this history as a prelude to commenting on a recent article in Politico by Alex Hinton, the great genocide scholar at Rutgers, entitled “70 Years Ago Black Activists Accused the U.S. of Genocide. They Should Have Been Taken Seriously.” The article discusses a remarkable 240-page petition submitted to the UN in 1951 by a number of Black activists, including W.E.B. Du Bois and the actor and singer Paul Robeson. The petition alleged that the US government was legally responsible for at least three forms of genocide against Black Americans: killing, causing serious bodily or mental harm, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

Unfortunately, as Hinton recounts, the petition didn’t live up to its drafters’ hopes. No UN organ considered or discussed it, and it was largely ignored by the mainstream media. The petition was even dismissed by the man who essentially created the crime of genocide, Raphael Lemkin, who claimed that it was the work of “communist sympathisers” falsely accusing the US of genocide in order to distract attention from Soviet crimes. (We all have our blind spots…)

Hinton is anything but dismissive of the petition’s legal claims. On the contrary, in his view, “the arguments in the document — especially with the benefit of some distance from the Cold War anxieties of the time — look very compelling”:

Perhaps most importantly, it made the case that the systemic and structural nature of racism against Black people in the U.S. was what made it genocide, a novel legal argument to expand the understanding of genocide that turned out to be ahead of its time.

In recent years, some genocide scholars have begun to think in terms of “structural genocide.” This sort of understanding could also be applied to, for example, the Uyghur people in China, where the group faces a sort of social death.

There is little question that the treatment of Black Americans before and after WW II satisfied the actus reus of genocide. The 240-page petition is rich with disturbing detail concerning the tens of thousands of Black men and women killed for no reason other than their race, the massive mental trauma caused by segregation and other legalised forms of discrimination, and the appalling conditions of life to which Black people were deliberately subjected.

As is so often the case, though, finding genocide’s necessary mens rea — the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” — is more difficult. For all its detail, the petition made no effort at all to show that the appalling persecution of and violence toward Black Americans was designed to destroy the group in whole or in part; that intent was simply assumed. For his part, Hinton doesn’t spend much more time on the intent to destroy; indeed, the quote above concerning “structural genocide” seems to acknowledge that the traditional understanding of genocide’s mens rea — the perpetrator’s subjective desire to rid the world of the disfavoured group — was not satisfied in the US situation.

Is “structural genocide” actually genocide? I’m not sure, because Hinton doesn’t really define what he means by the concept, and the superb Patrick Wolfe article on settler colonialism he links to mentions structural genocide only in passing — and emphasises that “[s]ettler colonialism is inherently eliminatory but not invariably genocidal.” We are left, then, with Hinton’s Uyghur analogy and the following statement in the Politico article, which references Lemkin’s very broad original understanding of genocide:

Such group destruction was carried out not just by killing but by political, social, cultural, economic, biological, religious, moral and physical means that crushed the “spirit” of the victim group. This is exactly the sort of interwoven tapestry of group diminishment “We Charge Genocide” sought to establish as constituting the genocide of Black Americans.

Lemkin’s original understanding of genocide, however, is not reflected in the much narrower Genocide Convention. Crushing the spirit of a protected group is not genocide, although it may lead to it — whether because it is precedes more specifically eliminatory measures or, in the case of serious mental harm, impels members of the protected group to stop reproducing. By itself, however, crushing the spirit is essentially cultural genocide, a form of genocide that the drafters deliberately excluded from the Convention, relegating it to a spectral presence in Art. 2(e), “[f]orcibly transferring children of the group to another group.”

Moreover, even insofar as crushing the spirit of a protected group is caused by acts that do satisfy genocide’s actus reus — such as killing, causing harm, and inflicting conditions of life — the issue of genocide’s mens rea remains. If the perpetrator crushes a protected group’s spirit because he wants its members to stop reproducing, the specific-intent requirement is satisfied. The same is true if the perpetrator crushes a protected group’s spirit by subjecting it to conditions of life that will inevitably, if slowly, lead to the group’s destruction. But the subjective desire to crush a group’s spirit is not the same as the subjective desire to destroy the group — at least not as that specific intent is encoded in the Genocide Convention and understood by modern international criminal tribunals. Indeed, as Wolfe notes in his article, slavery’s crushing of the spirit was precisely the opposite of genocide’s specific intent: slave owners wanted to ensure the continued docility of the slaves; they did not want to destroy the free labour itself. (To be sure, slave owners were more than happy to work slaves to death when they could be readily and cheaply replaced. But even then causing death was not the specific intent of the slave owner — the mens rea was more akin to knowledge/dolus indirectus.)

I also don’t think the Uyghur example is particularly helpful to Hinton’s defense of structural genocide. There are some similarities to the situation of Black Americans, given China’s legal persecution of the Uyghur and the use of the Uyghur as slave labour. But the case for China’s treatment of Uyghur being genocidal is far broader, relying on acts that are specifically intended to slowly but inevitably destroy the Uyghur as a group — traumatising them into not reproducing, forcibly sterilising them so they can’t reproduce, transferring their children to non-Uyghur families, and so on. Moreover, as detailed in the Newlines Institute’s excellent report (see especially pp. 35-46), the case for Uyghur genocide is also based on what the Institute aptly describes as “High-Level Statements of Intent” from President Xi, the Communist Party, and other important government officials. Those statements make clear that China does not simply want to crush the spirit of the Uyghur. It wants to eliminate the Uyghur from China completely.

It is entirely possible, even likely, that some of the government officials responsible for the persecution and violence detailed in the 1951 petition — and that continued long after — would have been happy to see Black people disappear from America. Some might even have had eliminationist motives. But it is very difficult to find the kind of specific intent that characterised the Holocaust, the Rwandan genocide, or the genocide of the Yazidi. It is even difficult to find evidence of specific intent on par with the Uyghur genocide, which is itself a close case. So I have to respectfully disagree with Hinton that the case for describing the treatment of Black Americans as genocide is “compelling.” As appalling as that treatment was — and remains today — it was not genocidal.

To be clear, I am not arguing that the treatment of Black Americans was internationally lawful. On the contrary, I think the fears of Taylor, Jackson, and US war-crimes officials were wholly justified: if crimes against humanity did not require a nexus with war, there was no question the US government had committed a variety of such crimes against Black men and women. Persecution is an obvious one, and also extermination, which does not have genocide’s specific-intent requirement. I even think it is likely that segregation and the violence that accompanied it satisfy the legal definition of the crime against humanity of apartheid (although the crime obviously did not exist during segregation).

But not genocide. And that is not a bad thing — it in no way minimises or trivialises the horrors of how Black people have been treated by their government throughout American history to describe that treatment as “merely” the crimes against humanity of persecution, extermination, and apartheid. Their treatment, which even today shows no signs of abating, will always be one of the great stains in American history. No matter how we legally describe it.

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