Black Genocide and the Limits of Law

[Alexander Hinton (@AlexLHinton) is Distinguished Professor of Anthropology and Director of the Center for the Study of Genocide and Human Rights at Rutgers University. He is author or editor of sixteen books, including It Can Happen Here (NYU, 2021), The Justice Facade (Oxford, 2018), and the forthcoming Anthropological Witness: Lessons from the Khmer Rouge Tribunal (Cornell, 2022)]

On 17 August 1946, as the Nuremberg trials were underway, Hannah Arendt famously wrote to Karl Jaspers, “The Nazi crimes, it seems to me, explode the limits of law; and that is precisely what constitutes their monstrousness.”

Just the day before the New York Times published a story headlined, “Negro in Louisiana is Beaten to Death.” It reported the murder of 28-year-old John C. Jones, a Black former army corporal. Jones and his younger cousin had been arrested the previous week after allegedly attempting to break into the house of a white woman in Minden, Louisiana.

The pair were released into the hands of a lynch mob that brutalized them, killing Jones and dumping his body in a lake.

While her gaze was turned outward to Germany, Arendt may or may not have read the back page article. She might have just skimmed the headline since lynching was not unusual. Indeed, Jones’ murder was just one of ten such documented killings during the past month – and thousands over the preceding years. Many more went unreported.

These killings are also among 152 murders of Black men and women from 1945-1951 that are presented as evidence in We Charge Genocide: The Crime of Government against the Negro People. This petition, delivered by Paul Robeson, William Patterson, and other Black activists to the UN on December 17, 1951, charged the US with committing a host of genocidal violations.

We Charge Genocide devotes almost half a page to Jones’s murder and trial. Jones’s cousin, heavily guarded due to local KKK violence, testified that police had released the pair directly into the hands of a mob. Afterward he witnessed “the lynchers beat and burn Jones with a blow torch. He saw Jones’ wrists chopped off with a cleaver; he saw Jones’ eyes pop out of his head from the white-hot flame of the torch.” An all-white jury acquitted six defendants after less than two hours of deliberation.

Such acts of violence against Black men and woman were commonplace at the time. The attacks terrorized the Black population and were part of a larger system of structural violence that, the petitioners argued, constituted genocide. Amid Cold War politics, Jim Crow, and the Red Scare, however, the petition was largely disregarded and suppressed, partly due to the communism of Patterson, Robeson, and the sponsoring Civil Rights Congress.

In my recent book, It Can Happen Here: White Power and the Rising Threat of Genocide in the US, I suggest that We Charge Genocide made a strong case that Blacks Americans were victims of genocide. I amplified this argument in a December 26, 2021 Politico essay, “70 Years Ago Black Activists Accused the U.S. of Genocide. They Should Have Been Taken Seriously.”

Kevin Heller, the distinguished professor of international law, disagrees. In his thoughtful Opinio Juris response to my Politico piece, Heller contends that, as violent and criminal as they were, the abuses Black men and women suffered at this time did not reach the threshold of genocide. He answers the question posed by his rejoinder’s title – “Is “structural genocide” legally genocide?” – with a definitive “no.”

Heller’s question is a legitimate one, especially in a court of law. But it also misdirects. His query reframes a consideration of anti-Black genocide through a narrow legal lens focused on special intent (dolus specialis). In doing so, his otherwise considered analysis relies on a conception of genocide that ultimately gives primacy to the Holocaust prototype and demonstrates, to recall Arendt’s phrasing, “the limits of law.”

My Politico essay is concerned with a broader question: was there a Black genocide in the US? If the Nazi atrocities about which Arendt was writing exploded the limits of law, so too did the genocidal violence, terror, and oppression of Black men and women at least through the time of the petition. John C. Jones’ fate dramatically underscores the reality experienced by Black people in the U.S. in ways large and small, sensational and quotidian.

While there is a significant breach between our positions, Heller and I nevertheless share quite a bit of ground. We agree that there is, as he puts it, “little question that the treatment of Black Americans before and after WWII satisfied the actus reus of genocide.” He acknowledges the horror and magnitude of this treatment and suggests it constitutes cultural genocide. And we both share the view that Black Americans were victims of crimes against humanity.

I greatly appreciate Heller’s collegial invitation to write this response and elaborate on important issues raised but not fully explored in the original Politico piece due to space constraints. The questions that he poses about my essay concerning the meaning of structural genocide and the issue of intent are also good ones even as they expose the limits of law.

The UN Genocide Convention, Erasure, and the Limits of Law

A “limit” is a boundary circumscribing a “range of action” and marking the point “beyond which something ceases to be possible or allowable.” To limit something is to “confine” it within this boundary, thereby marking it off from what lies beyond. Of course, such acts of limitation are difficult and create problems, especially in conceptual spaces like the definition of genocide.

Such difficulties are evident in the debates that led to the promulgation of the 1948 UN Genocide Convention (UNGC). The first definition of genocide, coined by Raphael Lemkin in his 1944 book Axis Rule in Occupied Europe, didn’t mention intent. Lemkin defined genocide as a “coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups.”

Similarly, on 11 December 1946, just months after Jones was lynched, the United Nations passed a resolution defining genocide as “a denial of the right of existence of entire human groups.” It also didn’t mention intent. But it did discuss cultural destruction and referred capaciously to the destruction of “racial, religious, political and other groups.”

The 1948 UN Genocide Convention was the product of intense political brokering. Cultural destruction, critical to Lemkin’s understanding of genocide, was largely dropped from text – as was the protection of “political and other groups.” The issue of intent was included in the UNGC but left undefined.

Only later – and well after the 1951 We Charge Genocide petition – was intent specified as “special intent,” a term that itself requires further interpretation. Heller’s insistence on special intent for proof of genocide, then, is neither straight-forward nor uncontested – even within the domain of law where there are debates about the type of intent required (dolus specialis, dolus eventualis, general/knowledge-based intent, and so forth).

And there are significant problems with an overemphasis on special intent – as well as with a fixation on intent more generally. Special intent arguments, for example, are often premised on the Holocaust prototype and sometimes Holocaust exceptionalism. From this vantage, the Holocaust stands as the exemplar and basis for comparison and assessments of categorical family resemblance.

This resemblance, it follows, should include clear intention of the sort manifest in Nazi documentation and propaganda. Of course, such “smoking gun” connections are notoriously difficult to find – even in the Nazi case and especially in courtroom contexts, where there have been few genocide convictions. The special intent requirements can also provide a pretext for inaction and impede prevention.

For some, special intent serves a gate-keeping role that prevents the dilution of the meaning of genocide. This line of thinking, epitomized by scholars like Gunther Lewy, has been critiqued for its Holocaust exceptionalism, excessive legalism, and erasures, including cases of colonial and structural genocide that don’t show a clear family resemblance to the Holocaust or have a clear paper trail of “smoking gun” special intent.

Such erasures extend more broadly to the UNGC, which, as noted above and in my Politico essay, diverged greatly from Lemkin’s original definition of genocide that was capacious and informed by a wide range of historical cases. It is ironic, then, that Lemkin publicly dismissed We Charge Genocide, a sad story I recount in my Politico essay.

For the above reasons, we must attend to the UNGC’s exclusions and the politics that led to them. The UNGC, the good it did notwithstanding, was worded to protect superpower interests. Cultural genocide was excluded in part to protect genocidal accusations that could be made against colonial powers or countries oppressing minority groups, especially in Latin America.

Political groups were excluded to protect states, especially the USSR, which had crushed political enemies. The intent threshold, in turn, erased superpower mass destruction in military operations or situations (like colonialism and structural genocide) that didn’t resemble Nazi mass murder. These exclusions are just some of what Dirk Moses has termed “the problems of genocide.”

Black Genocide and the Limits of Law

These issues were also on the minds of US officials when the UNCG was being forged. They worried not just about being accused of genocide against Indigenous peoples but also against its Black population – an issue they knew the USSR would underscore. The US insisted on language that would minimize this possibility, including the high, intent-based threshold and focus on physical destruction.

Heller begins his article by recounting one of many related US government discussions about Black genocide that took place before, during, and after the UNGC was passed. Indeed, the fear of being accused of genocide is part of the reason the US didn’t ratify the UNGC until 1986 and thereafter codify genocide with an even higher threshold of (“special”) intent and (“in whole or in substantial part”) destruction required.

These debates about Black genocide took place in the open and on the Senate floor, where Southern Democrats voiced concerns, sometimes in overt racist terms. The almost obsessive fear of being charged with Black genocide, We Charge Genocide argued, suggested US guilt.

The evidence, the petition claimed, was everywhere and “as much a fact as gravity.…The proof is in every day’s newspapers, in every one’s sight and hearing in these United States.”

We Charge Genocide is filled with supporting detail, which I describe in my Politico op-ed. Even President Truman’s Committee on Civil Rights report, published in 1947, acknowledged that, “state officials [frequently] participate in the crime [of lynching] actively or passively” –  a point illustrated the fact that two deputy sheriffs were among those tried for Jones’ lynching.

Many other government officials on federal, state, and local levels sympathized with or belonged to the KKK during its second wave spike that began in the 1920. Indeed, the day after Jones’ lynching, Mississippi Senator Theodore Bilbo announced he was a member of the KKK while stating that “the best way to keep a n—–r from the polls is to see him the night before,” a reference to lynching.

The US government, We Charge Genocide states, was aware that killings – and many other acts contributing to Black group destruction – were taking place in the US and failed to prevent them. Anti-lynching legislation never passed due to Dixiecrat opposition. South Carolina Senator “Cotton Ed” Smith argued that lynching was necessary “to protect the fair womanhood of the South from beasts.”

As such evidence from We Charge Genocide suggests (and there is voluminous further evidence in fields like African American, postcolonial, and race studies about the genocidal logics of the US racial formation), the crimes against the US Black population could be squeezed into a special intent legal frame.

But it is a somewhat awkward and purposely made contestable fit that ultimately, like the Nazi crimes at the time Arendt was writing, explodes the limits of law.

Black genocide does so in two ways. First, it reveals the limitations of the narrow, special intent-based legal definition, which is highly politicized and creates erasures that enable countries (like US contestations on this issue) to mask their crimes. Second, Black genocide explodes the limits of law by demonstrating the need to move beyond this narrow legal understanding to fully account for structural dimensions of genocide.

I discuss the second point in the next section of this essay. With regard to the first, I want to reiterate and underscore how the issue of Black genocide reveals that the special intent threshold is a politicized, contested, and gatekeeping construct. It exposes how genocide has been legally delimited to protect superpower interests and focus attention on certain types of violence (“rare” Holocaust-like genocidal events) and exclude other cases (more “common” processes of group destruction like colonial and structural genocide), which have their own distinct dynamics.

Further, the issue of Black genocide makes legible how race and power undergird the global governance and the international and US domestic human rights regimes. And, as scholars have noted, it lays bare the connections between genocide, law, colonialism, imperialism, race, and structural violence, ones We Charge Genocide underscored.

Black Genocide as Structural Genocide

Ironically, Lemkin himself made such connections – the early Lemkin, that is. He viewed genocide as a process (as opposed to an event) that sometimes unfolded over long periods of time. This process involved “one, destruction of the national pattern of the oppressed groups; the other, the imposition of the national pattern of the oppressor.” And it had political, social, cultural, economic, biological, religious, moral, and physical dimensions that together degraded and destroyed the “spirit” of a group.

Lemkin’s conception of genocide is capacious, encompassing not just Nazi genocide but colonial and structural genocide. In his power work on settler colonialism, Patrick Wolfe offered an early and innovative discussion of structural genocide, one others have further elaborated upon – including some who contend that intent can be inferred from structural logics (interwoven institutions, practices, and ideological conceptions).

Wolfe, as Heller notes, argued that anti-Black violence doesn’t qualify as genocide because the enslaved were kept alive for their labor. Much as I appreciate Wolfe’s work, I disagree with it.

Like others, I argue that Blacks were victims of structural genocide in the sense of Lemkin’s definition, which encompasses multiple modalities and pathways of group destruction. My Politico essay details the ways in which We Charge Genocide made the case while unpacking the interwoven institutions, laws, and practices that undergird systemic white supremacy and structural racism.

What the petition fails to do because of its 1945-51 focus, however, is to directly situate this group destruction in historical context even as it makes sporadic comments that “[i]n one form or another [Black genocide] has been practiced for more than three hundred years.” Here the petition alludes to a missing link in the Black genocide charge: transatlantic slavery.

While their experiences and backgrounds varied, twelve and a half million Africans regarded as “brutes” and “savages” were ripped from their homes and transported to the New World from the sixteenth to nineteenth centuries. Millions – some say close to half – of the enslaved died from the point of capture in Africa to delivery in the New World. Almost 400,000 landed in North America, where they were forced to work indigenous lands appropriated by settler colonialists.

Upon arrival, their African identities were stripped away – a process known as “seasoning.” Their captors recategorized them as slaves and, as racial classifications coalesced in the 1700s, “Blacks.” The process of destruction was institutionalized by a system of enslavement that sought to maintain their racialized subhuman position of “social death” and “natal alienation,” a situation against which the enslaved struggled, resisted, and rebelled.

Those, like Wolfe and Michael Ignatieff, who argue that enslavement wasn’t genocide because the enslaved were kept alive for labor miss this point about deracination and social death. This Black genocide involved, to return to Lemkin’s terminology, physical, biological, and cultural destruction.

If the Black genocide of transatlantic slavery was global – and there are “We Charge Genocide” reckonings to come in other parts of the postcolonial world – it took a particularly pernicious and enduring form in the US. It constitutes, along with the destruction of indigenous peoples, one of two founding genocides of US history.

Chattel slavery lasted 250 years and Jim Crow a hundred more. Atrocity crimes of all sorts – torture, slavery, deportations, rape, and apartheid – took place in the backdrop of the Black genocide of transatlantic enslavement.

Those crimes were occurring when Jones was killed and the We Charge Genocide petition was delivered near the end of Jim Crow. Despite the Civil Rights Movement’s achievements, significant abuses continue today, a point underscored by the 1619 Project, George Floyd protests, and Black Lives Matter movement. Not surprisingly, the “We Charge Genocide” claim has continued to be invoked in response to issues like Black birth control and reproduction, mass incarceration, and police torture and violence.

I very much appreciate Kevin Heller’s gracious invitation to respond to his rejoinder to my Politico essay. Such discussions are part of the much-needed dialogue about the issue of Black genocide, which has too long been ignored, disregarded, and suppressed – in part because Black genocide shatters the limits of law.