State and Federal Genocide (recognition, that is)

The powers that are not explicitly granted to the federal government in the United States Constitution are powers of the individuals states. Officially recognizing genocide probably was not on the founders' minds when they drew these guidelines up. Yet this has become an issue, as the U.S. 9th Circuit Court of Appeals recently ruled that a California law passed in 2000 cannot be upheld because the U.S. federal government has not officially recognized the Armenian genocide of 1915-1918. The law allowed surviving Armenian family members to sue foreign insurance companies for damages that remained unpaid since the massacres.

Despite Candidate Barack Obama's insistence that the United States government would officially recognize the Armenian genocide as such, since being elected, President Obama has muted these assertions. His overtures to Turkey now include notations that he still 'personally' believes his previous statements (ie, that genocide occurred), but the federal government still has not - as he said he wanted it to - recognize the massacres as genocide.

According to Los Angeles lawyer Brian S. Kabateck, "If taken to its logical extension, what [the U.S. 9th Circuit Court's] decision means is that all 40 states that have recognized the Armenian genocide have to set aside that recognition." According to the Court, however, California law cannot impinge upon the President's ability to conduct foreign diplomatic relations as he sees fit: in this case, that involves leaving a genocide unacknowledged.

Balancing the law with justice

This article in the New York Times has me musing about the nitty-gritty of the legal framework when it comes to meting out justice for war crimes or genocide. The article is part of the NYT's on-going coverage of the trial of Duch, who we have also discussed. Evidently, witnesses in the trial have been offering jarring and profound evidence, much of which cannot be corroborated and some of which is different from their own depositions. The article refers to the practical issues of the case, where "the testimony of these witnesses has not been vetted by prosecutors, and most have arrived poorly prepared by overburdened lawyers."

How should judges respond? In domestic trials in the U.S., the standards of evidence can be quite high. What is the right way to balance the accusations, when the witnesses are the victims of genocide or mass killing? (After all, there are reasons why there might not be eye witnesses.) These questions carry even more implications because a standard immediate response to accusations of genocide, at least by the media or governments who might then be compelled to act, is disbelief, as Samantha Power has documented.

Genocide Charges in Two Tribunals

Several months ago, when an arrest warrant was issued for Sudanese president Omar al-Bashir, it was issued on the basis of several charges of war crimes and crimes against humanity. The charge of genocide, however, was not among them, even though International Criminal Court chief prosecutor Luis Moreno-Ocampo had requested it. He has just successfully filed an appeal against the reasoning for the absence of the genocide charge. The appeal was made on the basis that the level of evidence of genocide he was held to was appropriate for the trial itself, not the issuance conviction and arrest warrant. Whether or not his appeal is ultimately accepted, it may prove extremely difficult to convince the ICC to rule that genocide has been committed. As International Bar Association chair Mark Ellis highlights, "[Charging one with genocide] requires the prosecutors to prove the individual had a specific intent to destroy an ethnic group."

There is much resistance to the arrest warrant, with or without the genocide charges. It is perceived by many - most vocally by Bashir himself - as neo-colonialist, and in violation of state sovereignty. While many may interpret certain aspects of international law - including Chapter VII of the United Nations Charter and the 1948 Genocide Convention - to override state sovereignty in very extreme situations of violence and oppression, many also insist on the supremacy of state sovereignty in all circumstances. Along these lines, a man from Khartoum giving his name as Mohammad wrote in to the BBC to express the much-shared view that "this is an internal affair in a sovereign country with a judicial system."

In a similar vein, the International Criminal Tribunal for Rwanda has just gotten approval by the UN Security Council to continue hearing cases until the end of 2010. This deadline will probably be extended subsequently for an additional two years, as there are 11 cases currently beofre the judges and many suspected of helping to commit the Rwandan genocide of 1994 are still at large. The Tribunal has thus far issued 38 judgements in its 15-year span (6 were acquittals).

Cruelty

One of the reasons I write for this blog (that is, when I actually do write for it) is to create an opportunity to respond to stuff I'm reading in a thoughtful way. I want a way to create a platform to maintain intellectual accountability but also to provide real incentives for actual writing and thinking.

So I'm reading Kathleen Taylor's Cruelty, a biologicaland psychological examination of why people engage behavior that most folks typically imagine as unimaginable. Torture, genocide, mass killing, that sort of thing. Thus far, the tone of the book (I'm on page 55) is similar to Milgram, Zimbardo, and Browning -- that is, that ordinary people are quite capable of committing horrific and heinous crimes.

Taylor seems to be kind of an academic -- she is affiliated with Oxford University, but has a rather opaque discussion of her credentials on her website. The book is -- thus far -- a fascinating read and follows an interesting narrative structure. As far as page 55, though, I'm not sure what sort of comprehensive theory on cruelty is being offered, nor how or what data might be considered. But this is perhaps an academic's criticism and is certainly premature. I'll think more on that as I move through the rest.

Taylor certainly uses language that I generally avoid in my own writing, though, to smart effect. In a section considered how perpetrators of cruelty rationalize their own place in the process, she includes a long quotation from the Marquis de Sade: "I can agree not to employ force against him whose own strength makes him to be feared; but what could motivate me to moderate the effects of my strength...?" Taylor's commentary? "This is the psychopath's charter: To the strong: I'll be civilized. To anyone else: I'll do what I like, and f*ck you." (p. 55) [Taylor included the "u."]

As I deal with my own copyediting in my book and fret over my careful and sometimes quite laborious writing, I find myself wishing that I had the cojones to drop the occasional f-bomb in there. Would certainly lighten it up a bit.

News: Shooting at the U.S. Holocaust Museum

We are sad to note the death of a security guard at the Holocaust Museum. The New York Times reports that the shooter was a white supremacist who "who embraces various conspiracy theories involving Jews, blacks and other minority groups and has at times waged a personal war with the federal government."

The alleged shooter is in critical condition. He maintains a telling website. He is, among other things, a WWII vet and member of Mensa.

On the Politics of Denial

After the airing on the local-language Kinyarwanda BBC radio of a broadcast dealing with the events in Rwanda of April 1994, Kigali has suspended the BBC's operations in the country. The broadcast featured an interview with former Rwandan Prime Minister Faustin Twagiramungu, who stated positions of blatant denial of the genocide against Tutsis and moderate Hutus during 1994: these explicit denials were not juxtaposed by official statements from the government, because (according to the BBC), when asked to offer a statement for the story, Kigali turned down the opportunity. Accusing the BBC of having "become a real poison with regard to the reconciliation of the Rwandan people," Kigali has stated that until the BBC alter "the divisive and disparaging nature" of its broadcasts, it will not be able to operate in the country.


Since the (internationally acknowledged) genocide against Tutsi and moderate-Hutu people in Rwanda in April 1994, the country has made the use of ethnic labeling illegal, considering "divisionism" (which is loosely-defined as speech which can lead to genocidal propoganda) a crime. The legacy which the use of "hate radio" (via the station RTLM) during the genocide has left on the recovering country is clear: the utter destruction that was arguably enabled in large part by the power of speech has left Rwanda in a position where it may be quite difficult to not define certain kinds of expression as "unacceptable speech." It is clear through this incident that genocide denial is one of the main things to be condemned as unacceptable by Kigali: while the interpretation of the Rwandan government is that limited expression of genocidal denial will allow the country to proceed in reconciliation and recovery, groups like Human Rights Watch disagree. Georgette Gagnon (HRW's Africa director) has stated that "If Rwanda is truly committed to the fundamental right of free expression, it should allow differing viewpoints on genocide issues and related government policies."



The Rwandan government has clearly chosen to ban genocide denial as a hindrance to progress: while an analysis of the potential effects of this decision is outside the scope of this post, it is also interesting to note a different kind of policy towards genocide denial regarding another genocide. Turkey has adopted a stringent policy against genocide admittance with regards to the events of World War I. When President Obama visited the country, he shied away from repeating his belief that the events constituted genocide, although he noted that his views "on that history [has] not changed]" since statements he made in the US. Yet, according to the Turkish foreign ministry - which vehemently denies that genocide had taken place - has stated that "history can be construed and evaluated only on the basis of undisputed evidence and documentation," and in the case of the Armenian killings during World War One, this documentation and evidence does not constitute such proof.

Thus, perhaps the type of freedom of speech that will be encouraged or denied after a genocide depends largely on whose voice emerges in the aftermath and ruling party.

Genocide Only by the Army?

As the BBC has reported, Joseph Mpambara - who is a Rwandan Hutu - has just been found guilty of torture by a Dutch court. He was not found guilty of charges of war crimes, however: despite his role in ordering the torture and brutal execution of at least two women and four children, Mpambara was not found guilty of war crimes "because he was not part of the Rwandan government army fighting Tutsis." The implications of this conclusion include concern about the rise of a fundamentally different kind of warfare; the 21st century world is one in which more people are coming to commit horrific acts against civilians even if/when they are unaffiliated with a governmental army. Does this lack of affiliation legally imply that civilians cannot - for whatever reasons - commit acts with the "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group" and thus not be found guilty of genocide or even war crimes?