A convention about unpredictable past?

A convention about unpredictable past?

One event, that happened at the end of 2017 and for obvious reasons remained almost unnoticed, brilliantly illustrates one global trend and thus is worth talking about. Ukraine’s President Petro Poroshenko made a speech devoted to the Holodomor Remembrance Day (in 2017 it was 25 November), and pointed out to Russia as the country bearing responsibility for the Ukrainian genocide as a successor of the Soviet Union. [1] Such statements of Ukrainian politicians and officials are not rare occasions and have become a routine. However, this routine reflects two relatively new notions widely employed in regional and world politics. These phenomena are noteworthy, because they involve among other things the devaluation of international law and particularly of the human rights law in favour of publicism adjusted to current political needs or, at best, moralising discourse. No matter, that people who follow these approaches are likely to act in good faith. These issues are discussed by our expert Dr. Alexander Osipov.

Poroshenko’s address delivers two major ideas. One is about a successor state’s liability for crimes committed by its predecessor. The other one, closely connected with the first one, is a broad interpretation of what constitutes the crime of genocide.

Whether Russia should be considered a successor or the continuing state of the Soviet Union is a controversial issue even in Russia itself. [2] However, in neither case state responsibility is transferable, and the international laws does not know such thing as criminal liability of states. State succession is acknowledged and regulated with regard to territory, international obligations, debts, property and archives. At least a country may make a voluntary unilateral recognition of the past crimes and its moral (and may be even pecuniary) responsibility before the victims, but such cases are exceptional and anyway are outside the domain of international law.

The myth of Russia as a reincarnation of the Soviet Union inheriting all its sins is widely spread and cultivated. Ironically, the Russian political mainstream facilitates the same perception (Russia as the continuation of the USSR), however, without acknowledging the Czarist and Soviet crimes. All these rhetorical exercises are of interest for experts in politics, social psychology and cultural studies, but they have little if anything to do with law.

Genocide is a more complex issue. It is an international crime under Convention on the Prevention and Punishment of the Crime of Genocide (1948; entered into force in 1951), which defines genocide as

<…>the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group. [3]

The same definition is included into the Rome Statute of the International Criminal Court. [4]

The devil is in detail. Genocide is not just mass extermination of people; it is a purposeful destruction of a certain group. By definition, the issue belongs to the domain of criminal law. This involves, first, the presumption of innocence and respectively the doubts are interpreted in favour of the accused. Secondly, criminal liability has no retroactive effect. Thirdly, state do not bear criminal liability under international law. The Genocide Convention is very straightforward on the matter, that only physical persons are liable while states bear obligations to prevent and persecution the crimes of genocide.

The trickiest thing is the notion of ‘intent’. It is a controversial issue whether ‘intent’ meant only purpose or aim (specific intent) or also knowledge (general intent). In other words, the crime is intentional in a broad meaning when the perpetrator knows about the consequences of the deed and does not take action to prevent them. Although the formulations of Art.2 of the Genocide Convention and the established judicial practice [5] proscribe a narrow interpretation, still it is a matter of discussions among legal and political scholars. [6]

This uncertainty opens Pandora’s box. In theory, there were many situations in human history, particularly over the last 200 years, when mass exterminations or death or people occurred because of forced displacements, cuts of food supply, blockages, counter-guerrilla warfare, usage of weapons of mass destruction and so forth. By coincidence, most of the victims belong to the same ethnic group, and at least the words ‘national group’ may be interpreted as concerning an imaginary or would-be statehood (like Ukraine under the Soviet rule, and this is the way how some Baltic and Ukrainian publicists argue). The perpetrators must have known about the deadly consequences and the ethnic profile of the victims. The perpetrators neglected this, and if one interprets ‘intent’ broadly as general intent (knowledge, but not purpose) all such cases can be added to a long list of genocides. For example, why should not one label the strategic bombing of Germany and Japan by Allied air forces and many other cases in this manner?

No matter that denoting events that happened before the Genocide Convention as ‘genocide’ has no legal grounds. The broadly understood Genocide Convention and its definition have already become an auxiliary instrument for publicism and propaganda with their moralising exercises. There are already lawyers who are eager to interpret the Convention in this fashion notwithstanding that it does not apply in a strictly legal sense. We shall acknowledge that in nowadays real politics the legal dimension of genocide issue has been marginalised, and thus one can say that the Convention becomes a treaty about unpredictable past.

A well-known phenomenon is campaigns for the international recognition of certain events as the crimes of genocide; it is noteworthy that they proliferate. In some countries such as Armenia, Azerbaijan, the Baltic States, and Ukraine, the recognition of genocides allegedly committed against their own population is an official stance. The 1991 Russian law on the rehabilitation of the repressed peoples, devoted to the consequences of ethnic deportations of the 1930-50s, also contains the term ‘genocide’. [7] Some states officially recognise genocides committed by other governments in foreign countries. The list of unofficial accusations and claims is growing worldwide. Most are still local, amateurish and thus little-known, but such endeavours as campaigns for the recognition of the genocide of Circassians (Adygs), committed by the Russian Empire in the 1860s in North-West Caucasus, [8] or the genocide of Herero by the German colonisers in the 1900s in South-West Africa [9] have got a good press. The number and variety of potential claims are beyond imagination.

What is wrong about the proliferation of genocide claims? The most visible one is the devaluation of law. Another one is that campaigns for the recognition of genocides do not lead to any durable and satisfactory solutions.

First, why are these campaigns run? On the surface, they look as driven by expressive motives or, in other words, a matter of principle, a way to commemorate the victims and symbolically punish the heirs of the perpetrators. However, this approach barely includes a rational component – commemoration can take place without international involvement, and no act of recognition can have any legal consequences. Probably, these campaigns are carried out for mobilising certain target audiences for tactical political purposes or at least trolling the adversary country. [10] What else? One may legitimately assume that this fight for international recognition also rests on rational estimations and pursues some goals in the long run. People might act in expectation of drastic changes that can turn the claims of genocide recognition into a resource that may help in getting certain benefits (from territorial gains to pecuniary compensations) or at least into an asset for trade-offs. No one know what can happen, for example, with Iraq, Russia or Turkey in 20-30-50 years. At some point certain countries may become vulnerable to external pressures, and accusations of past genocides can become an additional leverage.

It is quite easy to predict that most countries targeted by such a campaign will resist, and this is what happens in reality. First, the word genocide is emotionally charged to an extreme extent. Interestingly, that usually no one denies atrocities as such; the stumbling block is in the hot word itself. Secondly, no one can predict what kinds of new claims would be put forward if a country engages in the recognition of past genocides. Finally, the moral basis of the genocide claims is dubious and anyway not convincing for the addressees. Who and how can convince people who have nothing to do with the perpetrators of the past crimes that they shall pay to the people who have no direct connection with the victims?

The first consequence is the spiral of confrontation: a predictable reaction ranging from the stop of communication to denial will cause more heated accusations and so forth. The other one is a contribution to the erosion of the international human rights law. It is already a widely spread perception among policy-makers worldwide that human rights law as a double-bottomed suitcase, as an instrument of alien soft power or political pressure. Reluctance to engage in international dialogue and cooperation is partly caused by such campaigns and other nationalist claims supported from abroad.

The genocide controversy deserves attention as such and also as a part of two broader issues. One is the rising global obsession about fighting the past and urging redress for the others’ past wrongdoings. The other one the effects generated by modern approaches to racial and ethnic diversity. The genocide framework resembles other frames for the conceptualisation of diversity such as anti-discrimination, minority protection and multiculturalism – in the sense that all inevitably lead to the construction of an ethnic or racial category that as such suffers from an unjust social order or even persecutions. This vision encourages the race of victimities and exacerbates group alienation and conflicts.

What responsible and sober-minded intellectuals can do in such circumstances? Not too much. No reason to blame the people embarking on or supporting campaigns for genocide recognition. They merely use the opportunities provided by the modern political conjuncture and the global moral atmosphere; besides, many of them really act in good faith. A sad thing is that this good faith rests on ethno-nationalist social imagination: for most campaigners, an old statehood along with the people accused of genocide and the successor with its population having nothing to do with old crimes look as forms of the same ‘ethnos’.

A revision of international instruments is unrealistic, and in this case pointless. Generally, appeals to such revision of international mechanism are ultimately dangerous since the legitimacy of the international human rights system is already fragile. Appeals to legal principles with regard to genocide controversies are useless. We should acknowledge that in this framework legal approach as such is marginalised, and many lawyers demonstrate readiness to engage in moralising discourse and political propaganda disguised as legal argument.

Suggestions to qualify past atrocities as other types of crimes against humanity and/or to interpret genocide narrowly has no addressees. A rational discussion is already impossible in most audiences. The notion of genocide like other similar frameworks such as anti-racism, minority protection or plain ethno-nationalism carries a built-in device that excludes any criticism. If you demonstrate scepticism towards certain interpretations of genocide, in the eyes of many it looks like whitewashing of the crimes and their perpetrators. In many places, for example, in Ukraine and Armenia their versions of genocide are part of officially approved national narratives.

The only strategy remaining is doing what the promoters of the campaigns for genocide recognition do – diminishing the very notion of ‘genocide’ – but from another perspective. It means publicly articulated non-involvement and non-participation in any activities related to past atrocities labelled as genocides; the word ‘boycott’ would be correct, but probably too strong here. A clear and overt recognition that the genocide framework as it is in real politics is flawed, that it is a toxic asset, and that it has nothing to do with law and human rights may ultimately provide some impact. The devaluation of the framework as part of nationalist politics can weaken the effects of conflictual and morally dubious campaigns.


[1] Російська Федерація взяла на себе відповідальність за злочини радянського режиму – Президент Порошенко у річницю Голодомору в Україні [The Russian Federation took up responsibility for the crimes of the Soviet regime – President Poroshenko at the anniversary of Holodomor in Ukraine], http://www.president.gov.ua/news/rosijska-federaciya-vzyala-na-sebe-vidpovidalnist-za-zlochin-44706.
[2] Stanislav Chernichenko, “Является ли Россия продолжателем или правопреемником СССР?” [Is Russia a continuator or successor of the USSR?], Mezhdunorodnoye Pravo, 2001, No.3, p.35.
[3] Convention on the Prevention and Punishment of the Crime of Genocide. Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948. Entry into force: 12 January 1951, in accordance with article XIII, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx.
[4] Rome Statute of the International Criminal Court, A/CONF.183/9 of 17 July 1998, https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.
[5] William A. Schabas, Genocide in International Law. The Crime of Crimes. 2nd edition. Cambridge: Cambridge University Press, 2009, pp.241-270.
[6] John Quigley, The Genocide Convention. An International Law Analysis. Aldershot and Burlington, VT: Ashgate, 2006, pp.111-119.
[7] Закон РСФСР от 26 апреля 1991 г. N 1107-I “О реабилитации репрессированных народов” (с изменениями и дополнениями) [The RSFSR Law “On the Rehabilitation of the Repressed Peoples” from 26 April 1991 No. 1107-I (with subsequent amendments], http://base.garant.ru/10200365/#ixzz54BBJqL73.
[8] See: Walter Richmond, The Circassian Genocide. New Brunswick, NJ and London: Rutgers University Press, 2013.
[9] Jeremy Sarkin-Hughes, Colonial Genocide and Reparations Claims in the 21st Century: the socio-legal context of claims under international law by the Herero against Germany for genocide in Namibia, 1904–1908. Westport, CT and London: Praeger Security International, 2009.
[10] For example, a clear case is the Georgian recognition of the Circassian genocide; see Ivlian Haindrava, ‘Georgia’s recognition of the Circassian genocide in the context of Georgian-Abkhaz-Russian relations’, International Alert, http://www.international-alert.org/blog/georgia%E2%80%99s-recognition-circassian-genocide-context-georgian-abkhaz-russian-relations.

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