genocide without intent to commit genocide

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DOCUMENTS AND DISCUSSION

Can there be genocide withoutthe intent to commit genocide?

GUENTER LEWY

The question posed in the title of this essay appears to be nonsensical, if not out-right self-contradictory, but in fact it is not. As we will see below, several well-known students of genocide have argued that it is possible for genocide to takeplace without an intent to cause genocide. Such a view, I submit, would first

have to be squared with the text of the Genocide Convention of 1948. Accordingto Article II of the convention, the crime of genocide consists of a series of actscommitted with intent to destroy, in whole or in part, a national, ethnical,racial or religious group as such [my italics].1 Since genocide is a legal term ininternational criminal law, the definition of the convention establishing thecrime of genocide assumes a prima facie authoritativeness. The issue of the defi-nition of genocide should not be used to exculpate crimes that do not reach thethreshold of the legal definition of genocide. However, as I will argue in this

essay, the disregard of intentionality can stand in the way of a full understandingof events that appear to constitute genocide and lead to a distorted finding ofresponsibility. The significance of the intent issue goes well beyond the questionof how best to define genocide as a crime under international law.

The meaning of the Genocide Conventions intent clause

Practically all legal scholars accept the centrality of the intent clause in the Gen-ocide Convention. Genocide, writes Alexander K. A. Greenawalt, is a crime ofspecific or special intent, involving a perpetrator who specifically targetsvictims on the basis of their group identity with a deliberate desire to inflictdestruction upon the group itself.2 It is not enough that a perpetrator actedwith knowledge that his actions contributed to the genocide in question, i.e.that he had general intent. The perpetrator must have had special or specificintent, he must have desired and specifically intended the result of genocide.

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The prevailing view, as stated by Nehemiah Robinson in a well-known commen-tary, is that acts of destruction would not be classified as Genocide unless theintent to destroy the group existed or could be proven regardless of the resultsachieved. The destruction of a group without such intent would not fall underthe definition.3

During the deliberations leading up to the adoption of the Genocide Conven-tion, some delegates argued for a clear specification of the reasons or motivesfor the destruction of a group. In domestic law motive is often a minor matter.Whether A breaks into the house of B and steals the money he finds there inorder to pay his debts or to buy himself a fancy television is immaterial. Thecrime of burglary does not depend on the motive for the act. Two individualsmay intend to commit the same crime but for different reasons.4 Finding amotive may help establish that an individual intended a particular act. The fact

that an individual who killed a person strongly hated his victim and repeatedlythreatened him will make it more difficult for him to argue that the killing was inci-dental rather than deliberate, but in many cases the motive for a crime is irrelevantfor establishing guilt. In defining the crime of genocide, on the other hand, it wasfelt by the delegates of some countries, motive was important. Modern war, arguedthe representative of New Zealand, for example, is total and some instances ofaerial bombing might destroy an entire group. Hence unless the conventionlisted the reasons for the destruction of groups, such bombing might be considered

a case of genocide.The issue of motive was finally resolved by adding the words as such. Instead

of listing a variety of incriminating or exculpating motives, the term as such washeld to stand for the aim of destroying the group qua group.5 This solution did notsatisfy all delegates, but it became part of the final text anyway. As Robinsonphrases the current status of the intent clause: besides the intention of destructionthere must be a specific motive for the act, derived from the peculiar character-istics of the group.6 The destruction of the group must aim at ending the group as

a national, ethnical, racial or religious entity. Or as another legal scholar puts it:Evidence of hateful motive will constitute an integral part of the proof of a gen-ocidal plan, and therefore of genocidal intent.7 Not satisfied with the language ofthe Genocide Convention, the United States ratified the convention with theunderstanding that acts in the course of armed conflicts committed withoutthe specific intent required by Article II are not sufficient to constitute genocideas defined by this Convention [my italics]. The implementing legislation (theProxmire Act of 1988) follows up on the terms of this understanding and

speaks of the specific intent to destroy a group in whole or in part.8

The strong emphasis of the convention on intentionality also means that therecan be no such thing as negligent genocide. In 1978, the report of a UnitedNations Special Rapporteur on genocide proposed modifying the intent require-ment so that the convention would reach acts of omission as well as commission,and in 1985, another rapporteur made the same suggestion. However, no actionhas been taken on these proposed changes.9 The intent requirement of the conven-tion is also reaffirmed in Article 30 of the Rome Statute of the International

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Criminal Court adopted in 1998.10 In its commentary on the 1996 Code of CrimesAgainst the Peace and Security of Mankind, the International Law Commissionreferred to specific intent as the distinguishing characteristic of this particularcrime under international law:

The prohibited acts enumerated [. . .

] are by their nature conscious, intentional or volitionalacts which an individual could not usually commit without knowing that certain conse-

quences were likely to result. These are not the types of acts that would normally occur

by accident or even as a result of mere negligence [. . .]. [A] general intent to commit one

of the enumerated acts combined with a general awareness of the probable consequences

of such an act is not sufficient for the crime of genocide. The definition of this crime requires

a particular state of mind or a specific intent with respect to the overall consequences of the

prohibited act.11

Two ad-hoc tribunals established by the United Nations to try violations of inter-national humanitarian law committed in the former Yugoslavia and Rwanda,respectively, have addressed the role of intent in the crime of genocide. OnAugust 2, 2001, General Radislav Krstic, the Serbian commander of the DrinaCorps operating in the Srebrenica area in July 1995, was convicted of genocidefor his role in the massacre of more than 7,000 male Bosnian Muslims. Whathad begun as ethnic cleansing, the court ruled, turned into genocidethe deliber-ate killing of all Muslim men of military age.12 Even though there was no evidence

that Krstic either personally killed anyone or that he had been present at the masskillings, it was enough that he was held to have had knowledge of the plan todestroy the Bosnian Muslims of Srebrenica and participated actively in it.Krstic was given a jail sentence of 46 years, reduced to 35 years on appeal.13

On the other hand, the Serb Goran Jelisic, former commander of a detentioncamp in the Brcko region of northwest Bosnia and Herzegovina, was acquittedin late 1999 of the charge of genocide because he had killed arbitrarily and ran-domly rather than with an affirmed resolve to destroy in whole or in part a group

as such. The prosecution had argued that it was sufficient if the accused knew theconsequences of his actsthe extermination of a groupthough he may not havesought it, but the court rejected this view. The crime of genocide, the tribunaldeclared, required a specific intent, and this meant that a perpetrator, by one ofthe prohibited acts enumerated in Article 4 of the Statute, seeks to achieve thedestruction, in whole or in part, of a national, ethnical, racial or religious group,as such.14 Instead, Jelisic was sentenced to 40 years imprisonment for crimesagainst humanity, a charge to which he had pleaded guilty.15

The Trial Chamber of the International Criminal Tribunal for Rwanda, in theAkayesu case decided on September 2, 1998, also ruled that the crime of genociderequires a specific intent to commit genocide. Even in the absence of a confession,the special intent to destroy a protected group as such could be inferred from thespeeches of the accused and the massive nature of the atrocities committed.Killings had been carried out in a planned and concerted manner. The fact thatthe accused had deliberately and systematically targeted victims on account oftheir membership in a particular group (the Tutsis), while excluding the

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members of other groups, enabled the Chamber to infer the genocidal intent of aparticular act.16

Critics of the Genocide Convention have taken exception to the limited scope ofthe conventions definition of protected entities, especially the exclusion of politi-cal groups, as well as the ambiguity of the requirement that a group be destroyed

in whole or in part. Such criticism has also targeted the intent provision.

Structural violence as a form of genocide

The crucial role of intentionality in establishing the crime of genocide, empha-sized by legal scholars and UN-sponsored tribunals, has been challenged byIsidor Walliman and Michael N. Dobkowski in their book Genocide and the

Modern Age, published in 1987. The two genocide scholars questioned the idea

that only intentional or planned massive destruction of human lives should becalled genocide, an assumption that leads to the neglect of those processes ofdestruction which, although massive, are so systematic and systemic, andthat therefore appear so normal that most individuals involved at some levelof the process of destruction may never see the need to make an ethical decisionor even reflect upon the consequences of their action. In the modern age, theissue of intentionality on the societal level is harder to locate because of theanonymous structural forces that dictate the character of our world. Hence in

contemporary society, characterized by the domination of individuals by forcessuch as market mechanisms and bureaucracies, Walliman and Dobkowskiargued, the emphasis on intentionality is almost anachronistic. It has the tendencyto gloss over structural violence which through various mechanisms can beequally as destructive of human life as many an intentional and plannedprogram of annihilation.17

The Australian historian Tony Barta, who acknowledges his indebtedness toMarx, has applied the idea of structural violence to the fate of the Australian abor-

igines. Genocide, he argued, need not have intentionality as its defining charac-teristic. There can be terrible destructiongenocidal outcomeswithoutpurposeful annihilation.18 In Australia waves of settlers introduced sheep andcattle which became the instruments of genocide. The destruction of the abor-igines was accomplished not primarily through individual acts of killings, numer-ous as these were, but by the objective nature of the relationships between(white) capitalist wool producers and (black) huntergatherers which proved tobe totally incompatible. Both the aboriginal inhabitants and the invaders needed

the land and the ensuing conflict resulted in a relationship of genocide.19

Driven from their lands and deprived of their traditional food supplies, the abor-igines died. Barta admits that by far the greatest number of deathspossibly twothirdswere caused by diseases such as smallpox against which the natives hadno immunity, but he dismisses the significance of this statistic. A whole race,he concludes, became subject to remorseless pressures of destruction inherentin the very nature of the society. It is in this sense that I would call Australia,during the whole 200 years of its existence, a genocidal society.20

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In a critique of Barta, the sociologist Frank Chalk has argued against the down-playing of the role of individuals in the occurrence of genocide. Systemic vari-ables facilitate genocide, but it is people who kill. The same structures ofsociety do not always lead to the same consequences. States eschewing capitalismsuch as China and Cambodia have perpetrated huge massacres of ethnic groups

and social classes. Arguments which minimize the importance of intentionality,Chalk points out, also distract our attention from the role of absolutist orutopian or uncompromisingly idealistic doctrines or ideologies in the great masskillings of the twentieth century. The search for the perfect society became therecipe for the most horrible bloodshed in which millions lost their lives.21

The abandonment of the criterion of intentionality, I would add, also makesit difficult to assign guilt. Who is to be held responsible for structural violence?Guilt is individual; one cannot punish a social system, violent and unjust as it

may be. The principle of individual responsibility for international crimes wasaffirmed by the International Military Tribunal that tried the German major warcriminals. Crimes against international law, declared the Nuremberg Court in itsjudgment delivered on September 30 October 1, 1946, are committed by men,not by abstract entities, and only by punishing individuals who commit suchcrimes can the provisions of international law be enforced.22 According to thejudgment of the International Court of Justice rendered in the case of Bosniaand Herzegovina v. Serbia and Montenegro on February 26, 2007, states can

be held responsible for genocide, but proof has to be established that the actsof genocide were committed by persons or entities ranking as organs of therespondent.23 This is in line with Article IV of the Genocide Conventionwhich provides punishment for persons committing genocide, irrespective ofwhether they are constitutionally responsible rulers, public officials or privateindividuals.

Genocidal consequences as proof of genocide

The Holocaust, the Nazis attempt to destroy the Jewish people, is an instance ofgenocide in which the intentions and plans of the perpetrators are fully known.Leading Nazi personalitiesfrom Hitler down to Himmler and Hans Frank andofficials in the Ministry for the Occupied Territoriesrepeatedly and approvinglytalked of the destruction of the Jews that was underway. All this and more iscaught on thousands of original documents captured after the defeat ofGermany that detail the decision-making process leading up to the Final Solution

and tell in abundant detail why and how the process of annihilation unfolded. Thenames of the men who made and implemented the plan of destruction are recordedand we know why they committed their crimes. Unfortunately, this kind of richinculpatory evidence is rare, and in many cases of genocide the guilty intent ofthe perpetrators can be inferred only from the acts themselves. Proof of specificintent, as required by the Genocide Convention, may be difficult.

These difficulties have led some genocide scholars to abandon the criterion ofintentionality altogether and to argue that what counts is not intent but results and


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consequences. Very few governments, writes Henry R. Huttenbach, can belegally indicted to the satisfaction of the standard rules of evidence for their inten-tions. Hence the crime of genocide must stand on the result first and foremost;it should be defined in terms of the actual fate experienced by the group and noton the basis of the goals of the perpetrators. Genocide, according to Huttenbach,

is any act that puts the very existence of a group in jeopardy.24

Huttenbachs formulation, in my view, is inadequate. As I will try to demon-strate presently through the example of the tragedy of the American Indians, thedisregard of intent can mislead us and produce wrong conclusions. A huge lossof life in and by itself, even consequences that threaten the existence of agroup, is not proof of genocide.

The fate of the American Indians

The story of the encounter between European settlers and Americas native popu-lation does not make for pleasant reading. We took away their best lands,observed John Collier, commissioner of Indian affairs under FranklinD. Roosevelt in 1938, broke treaties, promises; tossed them the most nearlyworthless scraps of a continent that had once been wholly theirs.25 Helen HuntJacksons recitation of forced removals, killings and callous disregard of Indianrights in her famous book A Century of Dishonor26 is one-sided. The book does

not dwell on the mutilation of bodies during Indian raids on undefended farm-steads, the scalping and torture of captives and other atrocities. Still, her indict-ment captures some essential elements of what happened. There can be nodoubt that the Indians of America suffered horrendously and experienced near-extinction. Hence it is not surprising that Indian rights activists and some histor-ians too have used the terms genocide and holocaust to describe the fate of theIndians of the New World.

Thus, according to Ward Churchill, a professor of ethnic studies at the Univer-

sity of Colorado, the reduction of the North American Indian population frommore than 12 million in 1500 to barely 237,000 in 1900 represents a vast geno-cide [. . .], the most sustained on record. This holocaust was and remains unpar-alleled, both in terms of its magnitude and the degree to which its goals weremet.27 By the end of the nineteenth century, writes David E. Stannard, a professorof history at the University of Hawaii, Native Americans had undergone theworst human holocaust the world had ever witnessed, roaring across two conti-nents non-stop for four centuries and consuming the lives of countless tens of

millions of people.28

In the judgment of Lennore Stiffarm and Phil Lane, Jr.,there can be no more monumental example of sustained genocidecertainlynone involving a race of people as broad and complex as thisanywhere inthe annals of human history.29

The charge of genocide against the Indians has gained wide currency in Europeand elsewhere. Relying in part on the work of Stannard, a French specialist onAmerican economic and social history has concluded that in describing the fateof the American Indians the term genocide is indeed appropriate.30 In the

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eyes of Jehuda Bauer the destruction of the Indian people by Anglo-Saxon settlerswas clearly genocide.31 In this country few professional students of Americanhistory share this view, but many others in the academic community andbeyond have accepted the charge of genocide. The argument became popular atthe time of the Vietnam War when historians opposed to the conflict drew parallels

between our actions in Southeast Asia and earlier examples of supposedlyingrained American viciousness toward non-white people. The author of a bookentitled The American Indian: The First Victim called Americas white civiliza-tion as originating in theft and murder and the wars against the nativesefforts towards the genocide of the Indian people.32 The troops under thecommand of the famous Indian scout Kit Carson, wrote the historian RichardDrinnon in 1980, were forerunners of the Burning Fifth Marines who set fireto Vietnamese villages, and the Puritans at Fort Mystic in 1637 piled up a body

count that equaled or exceeded that at My Lai in 1968.33

By the end of the1970s, a study of the changes in high school American history textbooks con-cludes, Christopher Columbus had ceased to be a hero and instead had becomea genocidal criminal, responsible for the wreckage of the unspoiled civilizationsthat preceded the European arrival.34

The 1992 quincentenary of the landing of Columbus brought to the fore moreaccusations of genocide and revealed the rampant guilty conscience. The NationalCouncil of Churches adopted a resolution that called Columbus landfall an inva-

sion resulting in the slavery and genocide of native people.35

In a widely readbook entitled The Conquest of Paradise, Kirkpatrick Sale charged the Englishand their United States successors with following a policy of exterminationthat lasted four centuries.36 An Encyclopedia of Genocide, published in 1999and edited by the genocide scholar Israel Charny, includes an article on genocideagainst the American Indians authored by Ward Churchill which argues that theexpress objective of the Indian wars waged by the United States was extermi-nation.37 The only appropriate way to describe the way white settlers treated

the Indians, the Cambodia expert Ben Kiernan has written, is genocide.38

A demographic disaster

It is a firmly established fact that a mere 250,000 Native Americans were still alivein the territory of United States at the end of the nineteenth century. Still in scho-larly contention, however, is the number of Indians at the time of first contact withthe Europeans. Some students of the subject speak of a numbers game.39 Since

the 1960s, in particular, observes the anthropologist Shepard Krech, populationestimates have become sharply politicized. Indian scholars have accused non-Indian demographers of minimizing the size of the aboriginal Indian populationin order to make the decline less severe than it was.40

The disparity in estimates is enormous. In 1928 the ethnologist James Mooneyarrived at a count of 1,152,950 Indians in all tribal areas north of Mexico at thetime of initial contact with Europeans.41 By 1987, in American Indian Holocaustand Survival, Russell Thornton gave the figure of five-plus million Indians in the


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coterminous United States area in 1492.42 Considering this estimate as far too low,Lenore Stiffarm and Phil Lane, Jr. called Thornton a somewhat confused Cherokeedemographer who seeks academic respectability by aligning himself with the low-counters, and they proposed the number of 12 million native inhabitants within thepresent borders of the United States.43 This figure is indebted to the anthropologist

Henry Dobyns, who in 1983 estimated the aboriginal population of North Americaas 18 million and that in todays United States as about 10 million.44

From one perspective, these differences, however startling, may seem besidethe point; there is ample evidence, after all, that the arrival of the white man trig-gered a drastic reduction in the number of Native Americans. Nevertheless, even ifthe higher figures are credited, they alone do not prove the occurrence of genocide.

To address this issue properly we must begin with the most important reason forthe Indians catastrophic declinenamely, the spread of highly contagious dis-

eases to which they had no immunity. This phenomenon is known as a virginsoil epidemic; in North America it was the norm and it resulted in staggeringdeath rates. The most lethal of the pathogens introduced into the New World bythe Europeans was smallpox. Sometimes this disease incapacitated so manyadults, including hunters, at the same time that as many tribesmen died ofhunger and starvation as of the disease itself. In several cases entire tribesbecame extinct. Other killers included measles, influenza, whooping cough,diphtheria, typhus, bubonic plague, cholera and scarlet fever. Although syphilis

was apparently native to parts of the western hemisphere, it, too, was probablyintroduced into North America by Europeans.45

There is some disagreement about the number of the various epidemics thatdecimated the Indian populations, about the timing of their impact, and theextent of their spread. Population declines varied in different regions.46

However, the basic facts about the mortality caused by disease are unquestioned.The most hideous enemy of Native Americans was not the white man and hisweaponry, concludes Alfred Crosby, but the invisible killers which those men

brought in their blood and breath.47

It is estimated that between 75% and 90%of all Indian deaths were the result of epidemic disease.48 Ann Ramenofskyspeaks of a minimal population loss of 90% from all introduced disease.49

To some this is enough in itself to warrant the term genocide. David Stannardhas insisted that the Indians who died of introduced disease were as much thevictims of the Euro-American genocidal war as were those burned or stabbed orhacked or shot to death, or devoured by hungry dogs. The Jews who died ofdisease and starvation in the ghettos, he argues, are counted among the victims

of the Holocaust. In the same way, the native people of the Americas died invastly higher numbers and proportions, directly as a result of the larger genocidalconditions created by violent European invasions of their communities. As anexample of such genocidal conditions Stannard refers to the Franciscan missionsin California which he calls furnaces of death.50

There are several problems with this argument. It is true that the cramped quar-ters of the missions, with their poor ventilation and bad sanitation, encouragedthe spread of disease, but unlike the Nazis, whose intentions were anything but

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benevolent, the missionaries were sincerely concerned for the welfare of theirnative converts. Labour was obligatory, food and medical care were ofteninadequate, and, in conformity with prevailing norms, there was corporal punish-ment.51 However, none of this can compare with the fate of the Jews in the ghettos.The missionaries had an inadequate understanding of the causes of the diseases

that afflicted their charges, and, given the state of medical knowledge, there waslittle they could do for them. By contrast the Nazis knew exactly what was happen-ing in the ghettos, but quite deliberately deprived the Jewish inmates of both foodand medicine. Unlike in Stannards furnaces of death, the deaths that occurredthere were meant to occur.

The larger picture also does not conform to Stannards idea of disease asan expression of genocidal conditions. True, the forced relocations ofIndian tribes was often accompanied by great hardship and harsh treatment;

the removal of the Cherokee from their homelands to territories west of theMississippi in 1818 took the lives of thousands and has entered history as theTrail of Tears. However, the largest loss of life occurred well before the creationof the reservations, and some of the most severe epidemics hit the Indians afterminimal contact with European traders. Later, some colonists welcomed thelarge number of deaths and saw them as a sign of divine blessing that made theland of the natives available to them, but this does not change the basic factthat the Europeans did not come to the New World in order to infect the

Indians with deadly diseases.Ward Churchill not only agrees with Stannnard that the deaths from alleged

natural causes must be considered part of the overall pattern of genocideagainst the Indians, but takes the argument a step further by charging a policyof biological warfare. The waves of epidemic disease that afflicted the indigenouspopulations during several centuries, he writes, were deliberately induced, or atleast facilitated, by the European invaders. There was nothing unwitting or unin-tentional about the way the great bulk of North Americas native population

disappeared. It was precisely malice, not nature, that did the deed.52

We do know of one instance of biological warfare against the Indians. In1763, a particularly serious Indian uprising threatened the British garrisonswest of the Allegheny Mountains. Sir Jeffrey Amherst, commander-in-chief ofBritish forces in North America, concerned about his limited resources to putdown the rebellion and disgusted by what he saw as the Indians treacherousand savage mode of warfare, wrote to Colonel Henry Bouquet at Fort Pitt:You will do well to try to inoculate the Indians [with smallpox] by means of

blankets, as well as to try every other method, that can serve to extirpate thisexecrable race. It is not clear whether Bouquet carried out Amhersts sugges-tion, though we know that he approved of it. It is documented that on oraround June 24, 1763, two traders at Fort Pitt gave two visiting DelawareIndians two blankets and a handkerchief from the forts quarantined hospital.One of the traders, William Trent, noted in his journal: Out of regard wegave them two blankets and a handkerchief out of the smallpox hospital.I hope it will have the desired effect. Smallpox was already present among


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the tribes of Ohio, but some time after this episode there was another outbreakand hundreds of Indians died.53

During the Yorktown campaign of 1781, a British officer sent 300 smallpox-infected blacks to the rebel plantations, and there may have been other instanceswhere the British deliberately used smallpox as a weapon of war.54 However, apart

from Fort Pitt in 1763, no other cases of the deliberate use of smallpox againstIndians have been recorded. The allegation of Ward Churchill that the USArmy deliberately distributed smallpox-infected blankets to Mandan Indians in183755 is a fabrication, unsubstantiated by any evidence. This instance of aca-demic fraud was one of several cited by the Standing Committee on ResearchMisconduct at the University of Colorado, and led the Interim Chancellor of theUniversity to announce on June 26, 2006 the initiation of dismissal proceedingsagainst Churchill.56

The allegation that agents of the US government intentionally infected Indiantribes with smallpox is also at odds with the attempts of the federal governmentto vaccinate the Indian population. Vaccination against smallpox was developedby the English country doctor Edward Jenner in 1796, and in 1801 PresidentJefferson ordered the first Indians to be vaccinated. During the following threedecades, this programme continued, though implementation was slowed by theresistance of the Indians, who suspected a trick, and by the lack of interest onthe part of some officials. Still, as Thornton writes: Vaccination of American

Indians did eventually succeed in reducing mortality from smallpox.57

The charge that the US government should be held responsible for the demo-graphic disaster that overtook the American Indian population as a result ofvarious deadly epidemics is thus unsupported by any valid argument or evidence.The United States did not wage biological warfare against the Indians; neither canthe large number of deaths experienced by Native Americans as a result of diseasebe considered the result of a genocidal design. European settlers came to the NewWorld for a variety of reasons, but the idea of infecting the Indians with deadly

pathogens was not one of them. The experience of the American Indians thuscalls into question the notion that it is possible to determine the occurrence of gen-ocide by looking at results and consequences. The crucial role of disease in thedecimation of the Indian population drives home the point that a huge death tollin and by itself is not proof of malfeasance or genocide. The stress of the GenocideConvention on intentionality is not a mere legalism.

Is there other evidence to support the charge that American Indians were thevictims of genocide? Perhaps there is, though this evidence does not implicate

the national government and involves massacres of small groups of Indiansrather than the Indian people as such. The treatment of Native Americans byEuropean settlers was often callous and brutal. Settlers on the expanding frontiertreated the Indians with contempt, often robbing and killing them at will. InCalifornia especially, volunteer militias and vigilante groups at times displayeda flagrantly exterminatory mentality and murdered large numbers of Indians.

The Genocide Convention outlaws the destruction of a group in whole or inpart, but does not address the question of what percentage of a group must be

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affected by the destructive acts enumerated in the convention to trigger the crimeof genocide. The prosecutor of the International Criminal Tribunal for the FormerYugoslavia has declared that the definition requires a reasonably significantnumber, relative to the total of the group as a whole, though he added that theactual or attempted destruction should relate to the factual opportunity of the

accused to destroy a group in a specific geographic area within the sphere of hiscontrol, and not in relation to the entire population of the group in a wider geo-graphic sense.58 The trial chamber in the Krstic case, involving the wholesalekilling of Bosnian Muslims in Srebrenica, ruled that although the perpetratorsof genocide need not seek to destroy the entire group protected by the Convention,they must view the part of the group they wish to destroy as a distinct entity whichmust be eliminated as such.59 If this principle is adopted, an atrocity such as theSand Creek massacre of November 29, 1864 during which a volunteer regiment of

Western settlers attacked an Indian village and killed large numbers of women andchildren, even though limited to one group in a specific single locality, could beconsidered an act of genocide. Still, it is well to remember that a far largernumber of Indians died from the epidemic diseases unintentionally introducedand spread by the white man than from outright violence. As the historianFrancis Jennings has observed: Not even the most brutally depraved of the con-quistadores was able purposely to slaughter Indians on the scale that the gentlepriest unwittingly accomplished by going from his sickbed ministrations to lay

his hands in blessing on his Indian converts.60

Conclusion

Intentionality is an important element in domestic law. The difference betweenhomicide and murder, for example, turns on the degree of intent that is presentin the act of taking life. The negligent killing of a pedestrian by a motorist isnot the same as a deliberate assault that aims at the death of the victim. In the

same way, I have argued in this essay, there is every reason not to ignore therole of intent in what is often called the crime of crimesthe destruction ofan entire group of people or genocide. Proof of specific intent is necessary tofind an individual guilty of genocide, and the role of intent is similarly crucialwhen the historian assesses an episode of mass death that occurred in the past.A large loss of life should be the point of departure for a searching investigationto determine responsibility, but in and by itself it should never be sufficient for afinding of genocide. The disregard of intentionality will create an incomplete or

distorted picture and lead to false conclusions.In the absence of a confession, the establishment of intent in mass deaths that

occurred in the past is often difficult. Yet many times genocidal intent can beinferred from factors such as the scale of the atrocities committed or the deliberatetargeting of victims on account of their membership in a particular group. Theemphasis on intent is important, Kurt Jonassohn has correctly noted, becauseit removes from consideration not only natural disasters but also those man-made disasters that took place without explicit planning. Many of the epidemics


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of communicable diseases that reached genocidal proportions, for example, werecaused by unwitting human actions.61 To the victims it makes no differencewhether they died because of a deadly epidemic or as a result of a planned pro-gramme of destruction. It does make a difference for the assignment of responsi-bility and guilt and, more importantly, for historical truth.

Notes and References

1 The Genocide Convention was signed on December 11, 1948, and came into force on January 12, 1951. Forthe text see: United Nations, Secretariat, Treaty Series, Vol 78, 1951, pp 277ff.

2 Alexander K. A. Greenawalt, Rethinking genocidal intent: the case for a knowledge-based interpretation,Columbia Law Review, Vol 99, No 8, 1999, p 2264.

3 Nehemiah Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs,1960), pp 5859.

4 William A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), p 245.

5 Greenawalt, Rethinking genocidal intent, p 2278.6 Robinson, Genocide Convention, p 60.7 Schabas, Genocide, p 255.8 Resolution of Ratification adopted by the US Senate on February 19, 1986, and Title 18, Part I, Chap. 50A,

1091, both quoted in Lawrence J. LeBlanc, The United States and the Genocide Convention (Durham,NC: Duke University Press, 1991), pp 253, 255.

9 Matthew Lippman, The Convention on the Prevention and Punishment of the Crime of Genocide: fifty yearslater, Arizona Journal of International and Comparative Law, Vol 15, No 1, 1998, pp 464466.

10 Schabas, Genocide, p 214.11 Quoted in William A. Schabas, Was genocide committed in Bosnia and Herzegovina? First judgments of the

International Tribunal for the Former Yugoslavia, Fordham Journal of International Law, Vol 25, No 1,2001, pp 4950.12 Krstic (IT-98-33-T), Judgment, August 2, 2001, para. 572, www.un.org/icty/cases-e/index-e.htm. See also:

John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (Chicago: University ofChicago Press, 2003), p 172.

13 Krstic (IT-98-33-T), Judgment, April 19, 2004, para. 275, www.un.org/icty/cases-e/index-e.htm. See also:Schabas, Was genocide committed in Bosnia?, New York Times, April 20, 2004. In a paper presented at aconference in Yerevan, Armenian, in April 2005, The odious scourge: evolving interpretations of the crimeof genocide, Schabas has characterized recent attempts to broaden the concept of genocide by includingaiding and abetting genocide or complicity in genocide as not exactly elegant in their legal reasoning(p 16).

14 Cited by Martin Mennecke and Eric Markusen, The International Criminal Tribunal for the FormerYugoslavia and the Crime of Genocide, in Steven L. B. Jensen, ed., Genocide: Cases, Comparison andContemporary Debates (Copenhagen: Danish Center for Holocaust and Genocide Studies, 2003), p 336.

15 Jelisic (IT-95-10-T), Judgment, December 14, 1999, para. 139, www.un.org/icty/cases-e/index-e.htm. Thejudgment can also be found in Andre Klip and Goran Sluiter, eds, Annotated Leading Cases of InternationalCriminal Tribunals, Vol 4: The International Criminal Tribunal for the Former Yugoslavia 19992000(Antwerp: Intersentia, 2002), pp 669697.

16 Akayesu ((ICTR-96-4-T), para. 523 24, http://ictr.org. See also: Schabas, Genocide, pp 222223, andL. J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law(Leiden: Martinus Nijhoff, 2005), pp 110112.

17 Isidor Walliman and Michael N. Dobkowski, introduction to Genocide and the Modern Age: Etiology and

Case Studies of Mass Death (New York: Greenwood Press, 1987), p xvi.18 Tony Barta, Relations of genocide: land and lives in the colonization of Australia, in Walliman and

Dobkowski, Genocide and the Modern Age, p 238.19 Barta, Relations of genocide, pp 247 248.20 Ibid, p 240.21 Frank Chalk, Redefining genocide, in George Andreopoulos, ed., Genocide: Conceptual and Historical

Dimensions (Philadelphia: University of Pennsylvania Press, 1994), pp 5657.22 Office of the United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and

Aggression: Opinion and Judgment (Washington, DC: GPO, 1947), p 53.23 The full text of the judgment can be found on the Courts website www.icj-cij.org.

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24 Henry R. Huttenbach, Locating the Holocaust on the genocide spectrum: towards a methodology ofdefinition and categorization, Holocaust and Genocide Studies, Vol 3, No 3, 1988, pp 294, 297.

25 John Collier, Annual Report of the Secretary of the Interior (Washington, DC: GPO 1938), p 209, quoted inWilcomb E. Washburn, ed., The Indian and the White Man (Garden City, NY: Anchor Books, 1964), p 393.

26 Helen Hunt Jackson, A Century of Dishonor: A Sketch of the United States Governments Dealings with Someof the Indian Tribes (Boston: Roberts Brothers, 1888).

27 Ward Churchill, Indians are Us? Culture and Genocide in Native North America (Monroe, ME: Common

Courage Press, 1994), p 38; Ward Churchill, A Little Matter of Genocide: Holocaust and Denial in theAmericas, 1492 to the Present (San Francisco, CA: City Lights Books, 1997), p 4.

28 David E. Stannard, American Holocaust: The Conquest of the New World (New York: Oxford UniversityPress, 1992), p 146.

29 Lenore A. Stiffarm and Phil Lane, Jr., The demography of Native North America: a question of Indian sur-vival, in M. Annette Jaimes, ed., The State of Native America: Genocide, Colonization, and Resistance(Boston: South End Press, 1992), p 37.

30 Pap Ndiaye, Lextermination des Indes dAmerique du Nord, in M. Ferro, ed., La livre noir du colonialisme(Paris: Robert Laffon, 2003), p 57.

31 Yehuda Bauer, Comparison of genocide, in Levon Chorbajian and George Shirinian, eds, Studies in Com-parative Genocide (New York: St. Martins Press, 1999), p 38.

32 Jay David, The American Indian: The First Victim (New York: William Morrow, 1972), p 89.33 Richard Drinnon, Facing West: The Metaphysics of Indian-Hating and Empire-Building (Minneapolis, MN:

University of Minnesota Press, 1980), p 459.34 Robert Lerner et al., Molding the Good Citizen: The Politics of High School History Texts (Westport, CT:

Praeger, 1995), p 152.35 Quoted in Jose Barreiro, View from the shore: toward an Indian voice in 1992, Northeast Indian Quarterly,

Vol 7, No 3, 1990, p 16.36 Kirkpatrick Sale, The Conquest of Paradise: Christopher Columbus and the Columbian Legacy (New York:

Alfred A. Knopf, 1990), pp 281282.37 Churchill, Genocide of native populations in the United States, in Israel W. Charny, ed., Encyclopedia of

Genocide (Santa Barbara, CA: ABC-Clio, 1999, Vol 2), p 436.38 Ben Kiernan, The genocide of Native Americans, Bangkok Post, July 29, 2001.39 Brian W. Dippie, The Vanishing American: White Attitudes and U.S. Indian Policy (Middletown, CT:

Wesleyan University Press, 1982), p xv.40 Shepard Krech, The Ecological Indian: Myth and History (New York: W. W. Norton, 1999), pp 8384.41 James Mooney, The Aboriginal Population of America North of Mexico (Washington, DC: Smithsonian Insti-

tution, 1928), p 2.42 Russell Thornton, American Indian Holocaust: A Population History since 1492 (Norman, OK: University of

Oklahoma Press, 1987), p 43.43 Stiffarm and Lane, Jr., The demography of Native North America, pp 27 28.44 Henry F. Dobyns, Native American Historical Demography: A Critical Bibliography (Bloomington, IN:

Indiana University Press, 1976), p 1. See also his Their Numbers Became Thinned: Native American Popu-lation Dynamics in Eastern North America (Knoxville, TN: University of Tennessee Press, 1983).

45 Krech, The Ecological Indian, p 91; E. Wagner and Allen E. Stearn, The Effect of Smallpox on the Destiny ofthe Amerindian (Boston: B. Humphries, 1945), p 94; Karen Ordahl Kupperman, Settling with the Indians: The

Meeting of England and Indian Cultures in America, 1580 1640 (Totowa, NJ: Rowman and Littlefield,1980), p 5.

46 Dean R. Snow and Kim M. Lanphear, European contact and Indian depopulation in the northeast: the timingof the first epidemics, Ethnohistory, Vol 35, No 1, 1988, pp 1533.

47 Alfred W. Crosby, Jr., The Columbian Exchange: Biological and Cultural Consequences of 1492 (Westport,CT: Greenwood Press, 1972), p 31.

48 Brenda Baker gives this figure for southern New England in Pilgrims progress and praying Indians: the

biocultural consequences of contact in southern New England, in Clark Spencer Larsen and GeorgeR. Milner, eds, In the Wake of Contact: Biological Responses to Conquest (New York: Wiley-Liss, 1994),p 36. Estimates for other regions of the country yield a similar ratio. See e.g. the case of the Kalapuyatribe on the northwest coast in James L. Ratcliff, What happened to the Kalapuya? A study of the depletionof their economic base, The Indian Historian, Vol 6, No 3, 1973, p 27.

49 Ann F. Ramenofsky, Vectors of Death: The Archaeology of European Contact(Albuquerque, NM: Universityof New Mexico Press, 1987), p 171.

50 Stannard, American Holocaust, pp 137, 255, and Uniqueness as denial: the politics of genocide scholarship,in Alan S. Rosenbaum, ed., Is The Holocaust Unique? Perspectives on Comparative Genocide (Boulder, CO:Westview Press, 1996), p 179.


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51 The standard work on the subject is Sherburne F. Cook, The Conflict between the California Indians andWhite Civilization (Berkeley: University of California Press, 1976). See also: James J. Rawls, Indians ofCalifornia: The Changing Image (Norman, OK: University of Oklahoma Press, 1984).

52 Churchill, A Little Matter of Genocide, pp 2, 156, 151.53 A. T. Volviler, William Trents journal at Fort Pitt, 1763, Mississippi Valley Historical Review, Vol 11, No

4, 1924, p 400; Elizabeth Fenn, Biological warfare in eighteenth-century North America: beyond JefferyAmherst, Journal of American History, Vol 86, No 4, 2000, pp 15541558; Gregory Evans Dowd, War

under Heaven: Pontiac, the Indian Nations and the British Empire (Baltimore, MD: Johns Hopkins Univer-sity Press, 2002), p 190.

54 Fenn, Biological warfare in eighteenth-century North America, pp 1572 1573, 1580.55 Churchill, A Little Matter of Genocide, p 155. The story of the distribution of smallpox-infected blankets by

the U.S. Army to Mandans at Fort Clark also appears in Stiffarm and Lane, Jr., The demography of NativeNorth America, p 32, and in Jaimes, State of Native America, p 7.

56 http://www.colorado.edu/news/reports/churchill/distefano062606.html.57 Thornton, American Indian Holocaust, p 101.58 Quoted in Schabas, Genocide, p 237.59 Krstic (IT-98-33-T), Judgment, August 2, 2001, para. 590, www.un.org/icty/cases-e/index-e.htm. See also:

William A. Schabas, The UN International Criminal Tribunal: The Former Yugoslavia, Rwanda, and SierraLeone (Cambridge: Cambridge University Press, 2006), p 169.

60 Francis Jennings, The Invasion of America: Indians, Colonialism and the Cant of Conquest(Chapel Hill, NC:University of North Carolina Press, 1975), p 22.

61 Kurt Jonassohn, What is genocide?, in Helen Fein, ed., Genocide Watch (New Haven, CT: Yale UniversityPress, 1992), p 21.

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genocide without intent to commit genocide

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