Reflections on Genocide as the Ultimate Crime

26 Apr

[Prefatory Note: Subsequent to our article addressing alleged genocide by China against the Uyghur people, President Joe Biden declared the Armenian massacres of 1915 to be an instance of ‘genocide.’ The following paragraph addresses this issue in summary form:

“Biden has added another dimension to the misuse of ‘genocide,’ making another indirect controversial intrusion on past memories and present realities by fulfilling on behalf of the United States Government his campaign pledge to declare what befell the Armenian community in 1915 as ‘genocide’ on April 24, 2021 without bothering to clarify whether this was a legal, political, or moral assessment of events that occurred in the midst of World War I. The Nuremberg Judgment was very clear that for action to legally qualify as an international crime it must have been preceded by the enactment of the relevant legal norm. Otherwise, it is an instance of retroactive criminalization, and cannot validly be prosecuted, however abhorrent. As we know the word ‘genocide’ was a linguistic innovation of the 1940s, and it only became criminalized by the adoption of the Genocide Convention in 1948. For Biden to come along in 2021 and pronounce these events as genocide is again to trivialize this ultimate crime for the sake of domestic political gain and as a way of demeaning Turkey because of some foreign policy differences. If genuinely motivated for historical redress, a responsible approach might have been to call for an independent international inquiry to interpret the events, giving Turkey, as well as representatives of the Armenian community, an opportunity to present its narrative which is more an explanation than a justification.”] 

APRIL 23, 2021

Reflections on Genocide as the Ultimate Crime


This photograph depicts the Armenian leader Papasyan seeing what’s left after the horrendous murders near Deir-ez-Zor in 1915-1916. Photograph Source: Bodil Katharine Biørn – National Archives of Norway – Public Domain

The misuse of the word genocide is disdainful toward relatives of the victims of the Armenian massacres, the Holocaust, the Rwandan genocide – and as well a disservice to both history, law, and the prudent conduct of international relations. We already knew that we were adrift in an ocean of fake news. It is far more dangerous to discover that we are also at risk of being immersed in the turbulent waters of “fake law”. We must push back with a sense of urgency. Such a development is not tolerable.

We thought that Biden’s election would spare us from menacing corruptions of language of the sort disseminated by Donald Trump, John Bolton and Mike Pompeo. We thought that we would no longer be subjected to evidence-free allegations, post-truth and cynical concoctions of fact. It now seems we were wrong.

We recall Pompeo’s bragging about the usefulness of lying, we listened to his incendiary allegations against Cuba, Nicaragua, his outlandish claims that Hezbollah was in Venezuela, his antics on behalf of Trump — all in the name of MAGA.

Donald Trump and Mike Pompeo did not succeed in making America great again. They did succeed in lowering the already low opinion that the world had of America as a country that played by the rules set forth in international. A decisive development in this downward spiral was George W. Bush’s megacrime — the unprovoked invasion and devastation of Iraq, which UN Secretary-General Kofi Annan called an “illegal war” on more than one occasion. We observed Barak Obama’s involvement in the destruction of Libya, given a bitter resonance by Hillary Clinton’s unspeakable words on Qaddafi’s demise uttered with imperial glee: “We came, we saw, he died”. We cannot forget Trump’s criminal economic sanctions and financial blockades punishing whole societies in the midst of a crippling pandemic. These were crimes against humanity committed in our name. Such sanctions reminded us of merciless medieval sieges of towns, aimed at starving whole populations into submission. We think back to the one million civilian deaths resulting from Germany blockading Leningrad 1941-44.

No, to make America great again, it seems perverse to suppose that this can come about by continuing to behave as an international bully, threatening and beating up on entire peoples. No, in order to make America respected and admired in the world we can and should start by reviving the legacy of Eleanor Roosevelt, by rediscovering the spirit and spirituality of the Universal Declaration of Human Rights, and more broadly reenacting the peace-oriented humanism of John F. Kennedy.

We can and should be demanding more from Joe Biden and Antony Blinken. Evidence-free allegations of “genocide” in Xinjiang, China, are unworthy of any country, and most of all, of the country that wants to act as the prime international champion of human rights. Raphael Lemkin would turn in his grave if he learned that the crime of “genocide” has been so crassly instrumentalized to beat the drums of Sinophobia. The sudden flurry of United States interest in the fate of the Uyghur people seems less motivated by compassion or the protection of human rights than lifted from the most cynical pages of the Machiavellian playbook of geopolitics.

Genocide is a well-defined term in international law – in the 1948 Genocide Convention and Article 6 of the Rome Statute.The most respected international tribunals have separately agreed that proof of the crime of genocide depends on an extremely convincing presentation of factual evidence, including documentation of an intent to destroy in whole or in part national, ethnic, racial or religious group. The International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Court of Justice – all have endeavoured to provide authoritative tests of “intent,” treating intent as the essential element in the crime of genocide. This jurisprudence is what should be guiding our politicians in reaching prudent conclusions as to whether there exist credible grounds to put forward accusations of genocide, given its inflammatory effects. We should be asking whether the factual situation is clouded, calling for an independent international investigation followed by further action if deemed appropriate, and in nuclear-armed world, we should be extremely careful before making such an accusation.

Mike Pompeo’s allegation that China was committing genocide in Xinjiang was unsupported by even a hint of evidence. It was a particularly irresponsible example of ideological posturing at its worst, and besides, an embrace of reckless geopolitics. That is why it is so shocking to us that the 2021 US State Department Human Rights Report repeats the “genocide” charge in its Executive Summary, yet doesn’t even bother to mention such a provocative charge in the body of the report. This is an irresponsible, unreasonable, unprofessional, counter-productive, and above all, dangerously incendiary allegation, which could easily spiral out of control if China should choose to respond in kind. China would be on firmer ground than Pompeo or the State Department if it were to accuse the United States of “continuing genocide” against the First Nations of the Americas, Cherokees, Sioux, Navajo, and many other tribal nations. We can only imagine the angry backlash if it hadbeen China that had been the first to put forward loose talk about genocide.

By making non-substantiated claims the U.S. Government is seriously undermining its own authority and credibility to revive its role as global leader. To play this constructive international role is not on display by “weaponizing” human rights against China – or Russia. Instead, a foreign policy dedicated to the genuine promotion of human rights would call for international cooperation in conducting reliable investigations of gross violations of human rights and international crimes, wherever they occur – whether it be in India, Egypt, China, Russia, Turkey, Saudi Arabia, Myanmar, Yemen, Brazil, Colombia. We would hope that Biden’s Washington is confident enough to be even receptive to investigations undertaken in response to allegations of violations against the United States of America and its closest allies in Europe and elsewhere.

The Orwellian corruption of language by U.S. Government officials, the double-standards, the dissemination of fake news by the mainstream media, including the “quality press” and CNN, self-anointed as “the most trusted name in news” are eroding our self-respect. Indeed, the manipulation of public opinion undermining our democracy as we succumb

to the exaggerations of the wrongs of others that give an added bite to hostile propaganda, and are leading the world to the very edge of a forbidding geopolitical precipice, and in the process, heightening the prospects of a new cold war – or worse.

The Biden Administration at the very least should show respect for the American people and for international law by stop cheapening the meaning of the word “genocide” and cease treating human rights as geopolitical tools of conflict. Such irresponsible behavior may soothe the nerves of Trumpists, and fashion a façade of unity based on portraying China as the new ‘evil empire,’ but it’s a foreign policy ploy that should be rejected as it seems a recipe for global disaster.

Alfred de Zayas is a lawyer, writer, historian, expert in the field of human rights and international law and retired high-ranking United Nations official. 

10 Responses to “Reflections on Genocide as the Ultimate Crime”

  1. Amahoro Youth Club April 26, 2021 at 3:05 am #



    How fortunate that you posted this today because…

    Tomorrow Tuesday around 10AM you will receive a 30 page analysis by us at TFF that shows that the genocide accusation against China/Xinjiang not only does not have any trustworthy emirical basis but also that there are special MIMAC interessts – Military-Industrial-Media-Academic Complex – behind it – I mean the Newlines/Wallenberg Center’s propaganda report (the latter with the special friend of yours, Cotler…)

    No media checked the report’s sources…not one.

    I will publish this your article later today – I have seen other things by de Zayas and he has my greatest admiration.

    My warmest to you both


  2. American University April 26, 2021 at 6:21 am #

    I appreciate the legal distinctions you draw and your plea for factuality. I’m confused, however, about the addendum on Armenian history. You say that the Armenian massacres may not qualify as genocide and that, at a minimum, Biden should have called for a legal inquiry. However, you then begin the CounterPunch article by stating, “The misuse of the word genocide is disdainful toward relatives of the victims of the Armenian massacres, the Holocaust, the Rwandan genocide…” (Moreover, you use a photo depicting murders of Armenians as the opening image.) This seems to suggest that, at least prima facie, what happened to the Armenians in 1915 was, indeed, an instance of genocide. Can you explain more clearly your thinking? Additionally, what is one to make of independent (and Dutch and Canadian) evaluations that ethnic cleansing is taking place in China regarding the Uyghur people?
    I’m far from an expert in these matters but curious about the designation of genocide.

    • Richard Falk April 26, 2021 at 8:12 am #

      Thanks for your comment. You make important criticisms of my formulation. I need to reconcile the two
      criticisms of the misuse of the legal conception of genocide. Against China, an instance of geopolitical opportunism; against Turkey, foreign policy pushback plus retroactive criminalization by reference to genocide. I will try to make my comments cohere better.

      • Genocide in Palestine April 30, 2021 at 9:00 am #

        Please expose impostors who pose as ‘human rights’ activists, but in fact are promoter of terrorist organization for the interest of Israel and the west.

        How about the Jewish mafia criminals such as Irwin cotler, Hakakian, Payam Akhavan,
        Dershowitz and many more who pose as ‘human rights activist’ in a fake organization such as Raoul Wallenberg centre in Canada to promote Israel’s interest.

        When are these criminals and liars are arrested and put on trials?
        Why does Canada allow the Jewish mafia and its servants feed their ‘politicians’ and ‘parliament’ with lies for the interest of Israel and AGAINST the interest of CANADA?

        Payam Akhavan is an impostor who signs petition as Iranian, but in fact he is citizen of
        Canada who left Iran at the age of eight or nine, years before the Iranian revolution. This impostor claims that he and his family left Iran due to Iranian revolution because they are Bahai. He is lying and using victimization card for his lies. In fact he is CIA asset and along with zionist Hakakian founded ‘document center’ where CIA funding this fake org.

        These agents are using American tax money to make fake ‘documents’ against Iran. Everyone must know that these whores and pimps are promoting MEK, a terrorist organization, who carry out terror for Israel killing Iranian scientists and citizens of Iran to create chaos for regime change.

        Who is the link between the MEK and the Zionists in Canada?

        The Raoul Wallenberg Centre for Human Rights , a fake ‘human rights’ center runs by terrorists pro MEK who go after targeted countries such as Iran to promote the interest of zionist entity.

        All these criminals, Dershwitzs, Payam Akhavan, Cotler, Hakakian supports and promote MEK, the terrorist organization where is funded by Saudi Arabia and are trained by Israel/US
        Canada, like US, is another zionist house of worship for Israel through Israel lobby and its extension such as Cotler, Dorshwitz, Akhavan, to spread propaganda.

        Akhavan/Cottler/Hakakian Jewish mafia agents are begging for ‘accountability’ against Iran

  3. Judith Deutsch April 26, 2021 at 10:22 am #

    There is much to comment on re the legal concept of genocide, its political uses, and the actual situations in many parts of the world
    Further thoughts in my article which was in Counterpunch and in the Socialist Project::

  4. Beau Oolayforos April 27, 2021 at 7:02 pm #

    Dear Professor Falk,

    Thanks a million…enough nonsense from the Biden crowd…the Armenian massacre was 1 century ago. Our own, perhaps much worse, Native American annihilations were scarcely 2 – the US Govt. is sitting in a very fragile glass house and throwing rather large stones. Biden & his team of hypocrites need to shut up & get to work.

  5. Don E. Scheid April 28, 2021 at 5:33 pm #

    Is this a quibble? Just as torture was torture before it was made crime and slavery was slavery before it was made a crime, so genocide was genocide in a purely descriptive sense before it was made a crime. On the other hand, Biden’s pot shot at the genocide in Turkey’s history invites pot shots at United States history: a century or more of slavery and racism, and something like a genocide of native American tribes, crimes against humanity (Hiroshima, Nagasaki), etc., etc.

    • Richard Falk May 1, 2021 at 12:06 am #

      I believe it is an essential element of the CRIMINALIZATION of the behavior that is genocidal into the crime of GENOCIDE. The Nuremberg Judgment made this very clear with respect to crimes against humanity. It is important
      element of insulating a crime from jurisprudential erosion.

      • Artin Vartanian July 21, 2021 at 4:49 am #

        Actually, “genocide” DID NOT become “criminalized” by the adoption of the Genocide Convention in 1948.

        The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly, on 9 December 1948, but “entered into force” on 12 January 1951.

        WWII started on September 1, 1939 and ended on September 2, 1945.

        The Nuremberg Trials took place from November 20, 1945 – October 1, 1946, which was “BEFORE” The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948, let alone the fact that it only came into force on 12 January 1951, yet the word/term was used in the Nuremberg Trial Proceedings of 1945-1946, which IS, in Falk’s own words, “is an instance of retroactive criminalization”

        Nuremberg Trial Proceedings Vol. 1
        Indictment : Count Three – War Crimes

        “The murders and ill-treatment were carried out by divers means, including shooting, hanging, gassing, starvation, gross overcrowding, systematic under-nutrition, systematic imposition of labor tasks beyond the strength of those ordered to carry them out, inadequate provision of surgical and medical services, kickings, beatings, brutality and torture of all kinds, including the use of hot irons and pulling out of fingernails and the performance of experiments by means of operations and otherwise on living human subjects. In some occupied territories the defendants interfered in religious matters, persecuted members of the clergy and monastic orders, and expropriated church property. They conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.”

        “The term genocide, as used in the Convention to describe the international crime of that name, may be applied, however, to many and various events that occurred prior to the entry into force of the Convention.”

        Click to access ICTJ-Turkey-Armenian-Reconciliation-2002-English.pdf

        Maybe you should write an article criticizing the “instance of retroactive criminalization” at the Nuremberg Trials as “invalid”, but that would be anti-semitic I suppose.

  6. Kata Fisher May 3, 2021 at 3:00 pm #

    Geocide is misunderstood just as forgiveness is misunderstood.  Show me the miracle of forgiveness – and I show you the acting essence of forgiveness. Show me mass of dry human bones, and I show you genocide. 
    I show you forgiveness to whom, what, and why. I show you all the requirements for forgiveness. What must one do to be forgiven – we learned from St. Peter. 

    Regardless, there is still a miracle of death. For me, passing on to the other side at one place and at the same time can not be without both miracles and consequences.   Forgiveness is misunderstood, mainly because big-mouths have to find ever-new ideas every week, by week to talk about.  What a burden, and a yoke to them. 
    When it comes to forgiveness – one can be loved and blessed. That is not forgiveness. 
    One can be loved and blessed – and at the same time be under curse that can not be removed. In other words we can love it and bless it. 
    What can remove God’s curse. Perhaps, not even God will allow it – to be removed. 
    In order to forgive someone – they first must be forgiven by God Himself.  If they are not – there is no binding requirement to forgive. There will be no forgiveness of Grave transections – not by Church and not by God. 
    All wulfs should take mass killings seriously, and know that there will be no forgiveness. Is there such a thing as innocent blood. If there is one child – the killers  have put themselves into the hell, and their desendance.  The blood line will be cursed for all, absolutely all generations. Individuals may need to curse their blood line and disassociate from them to save their children.

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