The Crime of Destruction and the Law of Genocide

Their Impact on Collective Memory

Caroline Fournet

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317037026
• Edition: 1
• Topic: Droit
• Subtopic: Droit pénal

This highly original work provides a thought-provoking and valuable resource for researchers and academics with an interest in genocide, criminology, international organizations, and law and society. In her book, Caroline Fournet examines the law relating to genocide and explores the apparent failure of society to provide an adequate response to incidences of mass atrocity. The work casts a legal perspective on this social phenomenon to show that genocide fails to be appropriately remembered due to inherent defects in the law of genocide itself. The book thus connects the social response to the legal theory and practice, and trials in particular. Fournet's study illustrates the shortcomings of the Genocide Convention as a means of preventing and punishing genocide as well as its consequent failure to ensure the memory of this heinous crime.

Part I
Specificity and Uniqueness of Genocides

As the above title unequivocally states, the first part of the present book will explore the concept of the uniqueness of genocides. It is true that, in some respects, this title might seem slightly paradoxical and incongruous – if not grammatically incorrect – to the reader: and indeed, why employ the plural for something that is unique? Shouldn’t this title be phrased: ‘The Specificity and Uniqueness of Genocide’, thus emphasizing the speciality of the crime of genocide compared to any other crime?

As a matter of fact, the crime of genocide – understood here as a generic term for all occurrences of genocides – is unique and specific compared to all other international crimes. This does not imply that the crime of genocide is more serious, or more important than, for instance, a crime against humanity or a war crime; it just means that it is different. And indeed, establishing a sordid hierarchy between these crimes, setting up a pyramid of various crimes with the crime of genocide morbidly enthroned at the top, would ultimately make a mockery of all the victims of these different crimes by prioritizing their sufferings according to the legal qualification of the criminal acts perpetrated against them.

Not only can the specificity of the crime of genocide be established in comparison with other international crimes, but this specificity also attaches to each and every occurrence of genocide. This is precisely why genocides are unique: even if they fall into the same generic legal category, they are intrinsically different. Again, this does not presuppose in any way that some genocides are more serious than others but simply that they are different, and therefore unique. It will nonetheless appear obvious – even from a rapid glance at the book as a whole – that much emphasis is put therein on the genocide against the Jews perpetrated by the Nazis during the Second World War. Again, the reason behind this particular emphasis is not that this genocide is more serious or more important than the other genocide perpetrated by the Nazis against the Roma population, or than any other genocide committed elsewhere at another time in history. Rather, the prominence of the analysis of the destruction of the European Jews is due to both the quantitative and qualitative value of testimonies – including judicial testimonies – which the present book heavily relies on. And in fact, the vast amount of literature generated by the genocide committed against the Jews of Europe, as well as the importance of the trials held against its perpetrators, will be used throughout this study to highlight the necessity for the memory of the crime of genocide, memory which finds itself heavily impeded, if not totally impossible, when testimonies of the victims stay in the dark, and when prosecutions of the perpetrators remain sporadic and lenient, or even completely absent.

The aims of the following developments are to analyze the specificity of the crime of genocide in terms of its theoretical meaning and of its practical consequences, as well as to demonstrate how the crime of genocide is different compared to any other crime. To this end, the first chapter analyzes the word ‘genocide’ itself, thus focusing on the terminology employed to qualify this particular act of destruction and addressing the crucial question whether this crime should ultimately remain nameless. The second chapter subsequently explores the specificity of the crime of genocide with respect to its perpetration and to the intent of the perpetrators, as well as with respect to victims of genocides, and notably to their need to testify and speak out in a society that more often than not remains completely deaf.

Chapter 1

The Crime of Genocide: ‘A Crime Without a Name’?

The aggressor … retaliates by the most frightful cruelties. As his Armies advance, whole districts are being exterminated. Scores of thousands – literally scores of thousands – of executions in cold blood are being perpetrated by the German Police-troops upon the Russian patriots who defend their native soil. Since the Mongol invasions of Europe in the sixteenth century, there has never been methodical, merciless butchery on such a scale, or approaching such a scale.

And this is but the beginning. Famine and pestilence have yet to follow in the bloody ruts of Hitler’s tanks.

We are in the presence of a crime without a name.

Winston Churchill1

Although this is not expressly mentioned in the above quote, Churchill here described the mass executions of Jews and Jewish ‘Bolshevists’ in the Soviet Union by what he called the ‘German Police-troops’, which were in fact the Einsatzgruppen, the Nazi killing squads which carried on the extermination of the Jewish and Roma populations of Eastern Europe. His expression ‘crime without a name’ thus directly describing the crimes perpetrated by the Einstazgruppen, it is safe to use it as a designation of the Nazi genocides as a whole. Although his statement dates back to 1941, Churchill’s qualification of the Nazi crimes as ‘crimes without name’ raises the still unresolved – maybe because unresolvable? – question of which terminology is to be used to describe precisely what cannot be described, to talk about the untalkable, to express the inexpressible, to write the unwritable, to think the unthinkable. And indeed, many authors have addressed the question without finding an appropriate answer. For instance, Kofman has poignantly expressed her incapacity to talk about her father’s death in Auschwitz:

Because he was a Jew, my father died in Auschwitz: How can it not be said? And how can it be said? How can one speak of that before which all possibility of speech ceases? Of this event, my absolute, which communicates with the absolute of history, and which is of interest only for this reason. To speak: it is necessary – without (the) power: without allowing language, too powerful, sovereign, to master the most aporetic situation, absolute powerlessness and very distress, to enclose it in the clarity and happiness of daylight. And how can one not speak of it, when the wish of all those who returned – and he did not return – has been to tell, to tell endlessly, as if only an ‘infinite conversation’ could match the infinite privation? (Kofman, 1998, pp.9–10).2

Marienstras also expressed the idea that the genocide orchestrated by the Nazis remains out of the sphere of human language and that, consequently, one has to tell, one has to read while still remaining unable to tell or to read: ‘so one must read, one must tell and, at the same time, one cannot tell nor read …. The unnameable world of the carnage … : that one cannot, one must not, one dares not, one does not want to name’ (1994, p.69).3

Our inability to find words to qualify the crimes is further enhanced by the fact that, if we had to put words on them, these would necessarily belong to a terminology which existed before the crimes actually took place, to a pre-existing vocabulary. We would use already-existing words to describe and qualify unprecedented crimes and there would thus be a total inadequacy between the acts described and the words employed to designate them. In the words of Wiesel, ‘language failed us. We would have to invent a new vocabulary, for our own words were inadequate, anemic’ (1990, p.245). Ertel has expressed this idea in the following way: ‘whatever we do, whatever we say, we are led to use pre-existing forms of expressions to tell an unprecedented cataclysm’ (1993, p.10).4 Antelme also developed this impossibility to deal with ‘the disproportion between the experience [he] had lived through and the account [he was] able to give of it’, this impossibility to fill in the distance between the language and the experience of Nazi crimes, this impossibility to tell without suffocating:

Two years ago, during the first days after our return, I think we were all prey to a genuine delirium. We wanted at last to speak, to be heard. We were told that by itself our physical appearance was eloquent enough; but we had only just returned, with us we brought back our memory of our experience, an experience that was still very much alive, and we felt a frantic desire to describe it such as it had been. As of those first days, however, we saw that it was impossible to bridge the gap we discovered opening up between the words at our disposal and that experience which, in the case of most of us, was still going forward within our bodies. How were we to resign ourselves to not trying to explain how we had got to the state we were in? For we were yet in that state. And even so it was impossible. No sooner would we begin to tell our story that we would be choking over it. And then, even to us, what we had to tell would start to seem unimaginable (1992, p.3).5

Ultimately, the problem of designating the unspeakable through the use of preexisting common vocabulary is that it implies a ‘banalization’ of the crime. If the crime can be termed using common language, it then becomes part of our everyday vocabulary and hence a banality. On the other hand, if the genocide is however kept under silence, if no one talks about it, it is then destined to fall into oblivion and to be forgotten (Rinn, 1998, p.22). According to Wiesel, the Nazis intended to bring their crimes far beyond the linguistic limits, to push them away from any human perception, so that they could not be told, so that they could not be worded – so that they would be forgotten:

To forget would be an absolute injustice in the same way that Auschwitz was the absolute crime. To forget would be the enemy’s final triumph.

The fact is that the enemy kills twice – the second time in trying to obliterate the traces of his crime. That is why he pushed his outrageous, terrifying plan to the limits of language, and well beyond: to situate it out of reach, out of our range of perception. ‘Even if you survive, even if you tell, no one will believe you’, an SS told a young Jew somewhere in Galicia (1990, pp.187–8).

In other words, and even if it proved to be an impossible task, a word had to be found to qualify the crimes perpetrated by the Nazis, a word which could subsequently be used to qualify all other similar occurrences, even if retrospectively, such as the Armenian case which had been referred to by the Allies in a 1915 joint declaration as ‘crimes against humanity and civilization’ (see Schwelb, 1946, pp.178–81).

Consequently, Polish lawyer Raphael Lemkin coined the word ‘genocide’ in 1944 (Lemkin, 1944) by putting together the Greek term ‘genos’ with the term ‘cide’, which originates in the Latin ‘caedere’ meaning ‘to kill’. It is this term which stayed on and which was subsequently legally acknowledged with the adoption of the 1948 United Nations Convention on the Prevention and the Punishment of the Crime of Genocide.

As previously explained, finding a word to qualify such crimes – although necessary in order not to let the crimes be forgotten – would prove impossible not only because pre-existing terminology would necessarily be inadequate but also because, as the following development will highlight, even new vocabulary would fail to be suitable. The crimes, precisely because they go beyond human imagination, beyond human perception, will never be appropriately termed, can never be appropriately termed. There is simply no possible word.

Yet, Lemkin coined the word ‘genocide’ and this word, like any other, is far from satisfactory when it comes to describing the specific criminal acts. And indeed, as mentioned earlier, the word ‘genocide’ was created with two different words of both Greek and Latin origins. As a matter of fact, the word ‘cide’ finds its origins in the Latin term ‘caedere’, ‘to kill’, and thus means ‘killing’ while the Greek term ‘genos’ refers to people sharing the same genetic features and, consequently, to both the notions of ‘group’ and of ‘race’. These two concepts of group and of race, which we therefore rely on when employing the term ‘genocide’, raise a series of problematic issues.

First of all, and as will be subsequently analyzed, the notion of ‘groups’ in the context of ‘genocide’ is far from objective as the targeted groups might only exist as groups in the minds of the genociders: the existence of a ‘group’ as such might not have any basis in reality and it is the genocider’s fanaticism which will create this group as such. In other words, the crime of genocide aims at the destruction of a group arbitrarily defined by the genociders, and the perpetration of the crime of genocide therefore does not necessarily imply the existence of a group, of a genos. Chaumont expressed this idea in the following terms:

Last but not least, victimized ‘groups’ may only exist in the mind of the perpetrators. This is the reason why the demarcation of groups to be protected is so delicate and, to tell the truth, impossible to fix a priori. This argument in itself suffices to radically contest the validity of the current approach of the concept of genocide. As incongruous as it may seem, genocide does not presuppose the existence of a constituted genos, understood as a group conscious of its existence in the eyes of its members. This was the case even during the judeocide as, on one hand, some individuals who did not consider themselves as Jews, or who had ceased to do so, were persecuted as such while, on the other hand, others which were often considered as Jews were spared because they were not Jews according to the Nazi pseudo-racial sense (2002, p.11).6

And indeed, the Nazis arbitrarily and artificially defined the concept of ‘Jew’ and proceeded to the mythical edification of a religion – the Jewish religion – into a race. Under the Nazi criminal ideology, individuals could not choose to be Jewish or not; this characteristic was arbitrarily and artificially imposed on them and no one but the Nazis could actually determine who was a Jew under the Nazi regime. As a matter of fact, the Nuremberg laws gave a precise – although illogical – definition of who should be considered as Jewish and who should not, depending notably on the ascendance and on obscure hereditary rules. It did not matter whether individuals had the feeling of being Jewish or not, whether they saw themselves as being Jewish or not, whether they wanted to be considered as Jewish or not. They had no say, no choice, in the definition of their own identity. In other words, by using the word ‘genocide’ and by relying on the subjective notion of ‘groups’, we do nothing but acknowledge the genociders’ own fantasy.

Secondly, by depending on the concept of ‘race’ to legally define the crimes, the law is totally oblivious to the fact that the notion of ‘race’ is an anthropological fantasy inherited from the previous centuries: the law thus admits the reality of a ‘race’ and employs a ‘racist’ language. Coquio has analyzed this legal inheritance of the criminal language in the following terms:

We can see these difficulties lexically condensed in the word genocide, which shows that the law is compelled to inherit the criminal language. A possible misunderstanding indeed takes root in the etymology of the word ‘genocide’, which takes note of the ‘race’. This must nevertheless be carefully defined and one must not act as if the race existed. As absurd as it may seem, this unconscious takeover of racism impregnates current discourse. What about the law? The ‘race’, ideological concept ratified by nineteenth-century anthropology, and then interpreted by Hitler regarding Jews, is one of the criteria used for the definition of the target group under the 1948 Convention. Law therefore borrows its concepts, if not to the criminals, at least to the ideologies they had inherited and which, today, disqualify them as reliable concepts. The three other criteria – nation, ethnicity, religion – seem to conceptualize from the exterior the nature of target groups, with a statutory ambiguity for the unclear concept of ‘ethnicity’, located halfway between the scientific and the criminal discourse, similarly to the ‘race’ a century ago (1999, p.48).7

As will be subsequently explained, the specificity of the crime of genocide lies precisely in the racialization of a group to eradicate it. The crime of genocide is perpetrated against a group pre-defined by the genociders through a ‘hereditarization’ of specific features – whether ethnic, national, religious, political, social and so forth – of the members of this group artificially created. This implies that, if the concept of ‘race’ is to be deleted from the definition of the crime, this definition would fail to include the conceptual element which makes this crime so specific. According to Coquio, the specificity of the crime of genocide should not be defined in terms of the racial identity of the targeted group but in terms of an annihilating identification process orchestrated by the perpetrators of a genocide:

The status of these categories seems therefore to waver between the legally standardized world and the criminal’s norm. Law should choose but is unable to do so, as it must adopt the criminal’s category in order to incriminate him. As the criminal creates his own categories, and racializes his pseudo-enemies whoever they are, law should integrate all possible definitional criteria of the target ...