In a recent article in Legal Affairs, Nicholas Thompson discusses the question of genocide in Burma (Myanmar). In Burma, as in Sudan, the Balkans, and Rwanda, this question elicits both vocal assent and strident discord — agreement that genocide should happen “never again,” and bickering over whether it has. Most of the time, everyone agrees that something bad is occurring. Unresolved is the question of what to call it: genocide, or something less? If not genocide, what?
The all-or-nothing nature of “genocide” has repeatedly led to semiotic sermons and analysis paralysis, during which the ongoing massacre often obviated the debate. Escape is possible, but it requires a simple choice: expanding our vocabulary rather than imprisoning ourselves in it.
Just as we distinguish degrees of murder or petty versus grand theft, the world may benefit by considering degrees of genocide. In place of Churchill’s “crime with no name,” we may have created one with too few.
“Genocide” is a weighty word, one freighted with memories of past passivity in the face of atrocity. Shadowed by this guilt, most states have bound themselves by the maxim: “If genocide, then intervention.” When so identified, the community of nations has obligated itself to step in, stop the massacre, and bring the perpetrators to justice. It’s one of the few cases where the world has spoken so categorically, much to its credit.
One result of this declaration is that, desiring the consequent, human-rights activists do their damnedest to affirm the antecedent. Finding themselves surrounded by misery without end, priests, aid workers, and journalists look for some way to stop the murder, rape, starvation, and torture. They may try to secure economic sanctions, political isolation, and military intervention. In many cases, these campaigns are either derided as crying wolf or as demonstrating naivete about the efficacy of interference. Not surprisingly, as other tricks to secure intervention fail, the trump card of genocide gains luster in activists’ eyes. It’s hard to blame them.
Against this liberal bias run several conservative constraints. First, of course, is the fear of desensitization, or the “crying wolf” argument. Should a unwarranted cry of “genocide” be raised, then victims of future “true” genocide risk having their pleas ignored.
More perversely, accusations of genocide may encourage atrocity. Accusatory nations may fear using the term, because at the moment genocide charges are laid, negotiation options narrow dramatically. The perpetrators, knowing they stand accused and that the world has declared its intention to bring them to severe justice, have little incentive to stop the killing, They may even accelerate it. Even the threat of an indictment may close off options, because it locks all parties into a negotiation game with a single degree of freedom. Genocide accusations limit the accuser’s negotiation leverage without reducing the potency of the accused. For this reason, those states which rely primarily on diplomacy may be less liberal in applying the term. Such a split, for example, has been evident between the U.S. and Europe in the case of Sudan.
Both the desire to categorize events as genocide and the hair-splitting diplomacy in opposition derive from the term’s highly discrete definition. In the current scheme, “genocide” is a diplomatic sledgehammer. Approaching the fact of genocide with tools which allow greater finesse may be a better way to stop it early, the aim which should be diplomacy’s primary goal.
An analogy to other crimes may be helpful. Take murder, as an example. All murder is unlawful by definition. At the same time, most legal codes recognize degrees of murder or distinguish between successful and merely attempted murder. All murders are wrong, but some moreso.
Providing for degrees of criminality wins several advantages. Most obviously, it aligns the law with moral judgments. Degrees of murder reflect those social mores which judge a premeditated, intentional slaying as more heinous and deserving of opprobrium than either one committed in the heat of passion or an accidental killing. Second, such distinctions can incorporate predictions of the possibility for rehabilitating a criminal. Finally, and perhaps most controversially, degrees of crime may restrain someone already committed to a criminal course. They do this by giving both the criminal-at-large and police an out, an exit strategy which, while recognizing that a crime has taken place, also allows a criminal to choose whether to commit an even worse crime
This restraining effect becomes much more interesting in the case of genocide, because genocides are often the largest of hostage situations. While legal debates focus on actions past, in genocide’s case often these actions are past imperfect. When accusations of “genocide” are first considered, the destruction is usually still underway, and the accused still can affect its outcome. They hold the remaining populace hostage, whether intentionally or not. The hostage factor is only accentuated by the world’s empirical preference for waiting until genocide is underway, rather than preemptively intervening to stop likely genocide.
The hostage factor is one I believe overlooked in current approaches to genocide. Should a junta be punished for their past actions? Absolutely, but, invoking a cliche, life is for the living. If a less-than-Carthaginian peace can protect the remaining populace, it’s a peace worth making. It’s also a peace impossible under the current definitions of “genocide.”
The current situation is a police negotiator’s nightmare. It’s like a domestic hostage-taking where the negotiator shouts through a bullhorn:
“Listen to me, Joe. You’ve killed your wife already. We’re going to execute you for that murder regardless, but you really shouldn’t kill your kids as well. We know you think that they’re the devil’s spawn and their death is the path to salvation, and that’s the reason you killed your wife, but please don’t kill them before we come in and kill you.”
Joe doesn’t have much to lose in this situation, regardless of his choice. If the police were able to offer some concessions instead, such as “putting in a good word at trial” or even reduced charges, it may be that Joe will surrender and leave his kids alive.
It might be the case even if Joe’s name was Slobodan or Pol Pot.
Of course, for such a scheme to work, the world must be willing to recognize lesser degrees of genocide, and, critically, it must be willing to intervene even given these lesser degrees. The largest question in implementing such a scheme is whether the greater range of prosecutory options would make agreement amongst intervening states more likely. States would also need to agree that even in the face of heinous crimes, it might be best to hold one’s nose and agree to lesser punishments in order to save what remains of the oppressed populace. In the past, the West has not been entirely opposed to such schemes, choosing to exile criminals of high status rather than try or execute them. For example, despite being considered a criminal (if a brilliant one) by some of Europe’s monarchies, Napoleon was not executed after Waterloo but instead was exiled. Would the world be better off had Slobodan Milosevic been exiled but otherwise unharmed in 1993 rather than in custody starting in 2001?
Allowing for degrees of genocide would also improve the credibility of those tribunals which punish violations. In the case of the Balkan tribunal, the sentences have occasionally been seen as haphazard, and some worry about the effect on credibility. Tighter sentencing guidelines are one way to attack this inconsistency. As things stand now, however, one set of sentencing guidelines would need to cover all possible kinds of genocidal crimes. Allowing for degrees of genocide in the indictments would not hinder efforts to develop sentencing guidelines, and most likely would assist in them.
All murder is heinous, and as a moral code, that’s a fine position to hold. Pragmatically, though, most criminal codes tend to assume that by the time charges are laid, the accused is incapable of doing further harm. Genocide violates this assumption, and in the interests of the living, we may need to mediate between principle and reality. Concluding each speech with “never again” is costless and morally unambiguous, but recognizing degrees of genocide may be the better choice for those forced to live in a morally ambiguous world.