Why Genocide is “the crime of crimes”

When discussing genocide in Rwanda, we are discussing the highest level of moral opprobrium as envisaged by the Genocide Convention

The 1948 Genocide Convention defines the crime of genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” In Rwanda, the segment targeted for elimination was on ethnic basis and the intent was to destroy “in whole” since the entire Tutsi population was targeted for elimination. It is possible to say that prior to 1994 the intent had been to destroy the Tutsi “in part” with 1994 being the “final solution” to a persistent problem that had failed to be solved by the “partial” genocides. Some have called these “trial” or “practice” killings for the final act. In Burundi, for instance, the intent to destroy the Hutu population in 1972 was “in part.” The genocidal government in Burundi targeted only a section of the Hutu population, namely a) those among the male population who it perceived as able to defend the targeted group, starting with Hutu elements in the security forces; b) those who had received formal education (the intelligentsia) and wealthy Hutu businesspeople, who could potentially constitute a political force. In this zero-sum genocidal logic, the objective was to constrain the Hutu elite’s potential to challenge the elite Tutsi’s hold on power. In Rwanda, there was no such categorization, as the aim was to erase the entire Tutsi population from the surface of the earth.

The moral difference between genocide and other crimes

Raphael Lemkin, the Polish lawyer and key architect of the Genocide Convention, conceived the term as he was grappling with the magnitude of the horror that befell the Jews under Nazi rule in Germany in the lead up to the Nuremburg Trials. He referred to genocide as the “crime of crimes”. It is the crime that carries the highest moral opprobrium. That is because a group is targeted for elimination simply for existing: the crime of being. The moral difference between genocide and other crimes is that it doesn’t offer the opportunity of life/living for the targeted group; they can’t escape death. Once the target group has been identified, the members of that group are locked-in for extermination.

This observation is significant even when considering other protected groups under the genocide convention. For instance, in a politicide, a politician who denounces his or her party/ideological convictions is afforded the opportunity to escape death and get spared. Heroic politicians have often chosen death rather than give up their ideological convictions. Similarly, a believer can choose martyrdom rather than denounce his or her religion. But obviously, those targeted for their beliefs/opinions/convictions often have an opportunity to escape death, while those targeted for being do not. There lies the difference! This means that when discussing genocide in Rwanda, we are discussing the highest level of moral opprobrium as envisaged by the Genocide Convention. It is how to grasp the predicament of the seven-year-old who pleaded in vain with his killers to spare him, “sinzongera kuba umututsi” (I will no longer be a Tutsi, if you spare me).

“Well-intentioned” unpremeditated denial

The slippery of genocide denial starts with the failure to recognize this moral difference. For instance, it is rare to find people of conscience who find genocide denial acceptable. Even most ardent defenders of freedom of speech agree that genocide denial represents an assault on the memory of victims, mocks survivors, and threatens the fight against the recurrence of genocide. However, genocide denial can – and often is – reproduced by very reasonable people. This is done unwittingly due to negligence and, at times, failure to see the entire set of consequences for treating the subject of genocide casually.

Unpremeditated denial usually stems from ignorance despite “good intentions.” For instance, the use of the terminology “Rwandan genocide” is often unpremeditated denial. That is because the moment the term genocide is used, it is essential to identify the target group. On the contrary, the term “Rwandan genocide” conceals who the victims are.

For one thing, the concept of “Rwandan genocide” wasn’t pointing at any targeted group, as the United Nations definition of genocide warrants. Between 1994 and 2006 the Rwandan government was using the term “Rwandan genocide.” Clearly, its intent was not to deny the genocide. But it had assumed goodwill since at the time the facts of the genocide were everywhere for all to see.

The government did not imagine that these facts could be distorted by those who sought to bring it under their control by weaponizing the terminology against the Rwandan people. Similarly, it is possible that at the time the significance of the terminology had not been well appreciated. Indeed, the international solidarity to the denialist resurgence could not have been envisaged by those who imagined that the world would show solidarity to survivors in particular and to Rwandans in general.

Further, the post-genocide government’s preoccupation with unity most likely informed the decision to use a “unifying” – albeit denialist – terminology. This would have been alright if the world had done its part to show solidarity, especially after its indifference in the face of the killings.

However, as much as unity was needed, it didn’t need to come at the cost of accommodating a denialist concept. What was more unifying and reconciling was the clarity of the terminology and the proper identification of the culprits as a means of pursuing accountability and nurturing collective consciousness in Rwandan society around the tragedy. Crucially, to refer to it as genocide against the Tutsi is not to suggest that all Hutus are perpetrators – the criminal entity is the government and all those who subscribed to the Parmehutu ideology that was the basis for the genocide. In the same way, it is not all Germans who committed the Holocaust but the Nazi regime and adherents to the ideology of Nazism regarding the Arian race and Lebensraum.

Secondly, whereas Hutus and Tutsis do not fit the precise definition of ethnic groups and in fact belong to the same Rwandan ethnicity, per definition, the fact that the victims were “targeted as such” means that the perpetrators targeted Tutsis because they perceived them to constitute an ethnic group, a condition that was sufficient for the International Criminal Tribunal for Rwanda (ICTR) to rule that a “genocide against the Tutsi ethnic group” took place in Rwanda in 1994; the court ordered subsequent judicial proceedings to consider it as a fact “beyond any dispute and requiring no proof.”

Third, once this reality is established then it remains unintelligible to refer to the “Rwandan genocide” because it is clearly inconsistent with the definition of genocide. A Rwandan genocide is only possible as an interstate phenomenon. Even though the term “the genocide in Rwanda” might be acceptable (because the targeted group may be understood to be the subtext), to be unambiguous about it by using “the genocide against the Tutsis” is to exercise moral clarity. Significantly, “Rwandan genocide” conceals – deliberately or otherwise – the target group, as though people were targeted for their national identity, which is a misrepresentation that suggests inter-state actors, as noted above. Additionally, such terminology would also defeat the very essence of state control over the annihilation of its population “in part or in whole,” as the definition in the Genocide Convention states. It would follow that if the state has no control, its intent cannot be established, thereby diluting its responsibility in the case of Rwanda.

Further, “Genocide against the Tutsis” is a recognition of solidarity with the targeted group, given that it locks out any other group as victims of the 1994 genocide. In this regard, it is unintelligible to refer to “moderate Hutu victims of genocide”. This is so simply because, while Tutsis were targeted as a group, Hutus were targeted as individuals for opposing the extermination project targeting Tutsis; they were killed for “believing” that genocide was unacceptable, itself a moral conviction worth emulating.

Unpremeditated denial has often also used the figure 800,000 deaths (as premeditated denial uses figures of 500,000 and below) when the figure corroborated by survivors in the 2002 Minaloc census stands at 1,070,014. The blatant rejection of this figure questions the goodwill of the authors, and puts victims on trial, as though they have something to gain from inflating the number of deaths. It aims to belittle the genocide since there’s no precise threshold of deaths necessary for the crime to constitute genocide. The only factor that matters under the genocide convention is the intent to destroy “in part or in whole” a protected group. In other words, even if the death toll stands at 50,000, it would be appropriately called genocide, and it would still be morally reprehensible that genocide was allowed to take place amidst international indifference.

The fact that denial is “well-intentioned” doesn’t diminish the responsibility that should come with any discussion of genocide. Neither is ignorance a defence. Sadly, the fact that it’s the value of African lives at stake appears to be the driver of this willful ignorance.

Premeditated and flagrant denial

The failure to grasp the moral difference between genocide from other crimes has been a tool for premeditated genocide denial whose aim has been to, when the genocide is acknowledged, belittle, justify, and invoke a parallel genocide. The intention is to create a moral equivalence that suggests that “both sides killed and every- one is to blame.” It is a way of de- centralizing criminal responsibility just as the killers used to tell people in the 1994 genocide against the Tutsi that as more go out to kill no one will be held responsible.

In the context of the genocide against the Tutsis, the Rwanda Patriotic Army (RPA) has been at the centre of this denialist discourse. Its 1990 military offensive to repatriate the 1959 refugees who were scattered in different countries in the region is used as justification for the genocide. The RPA is also blamed for the downing of the presidential plane that “made people avenge their president.” But vengeance would have made sense if it targeted the RPA. A “double genocide” in the DRC in 1996 is also invoked to retroactively justify the 1994 genocide against the Tutsi. These are denialist arguments because they attempt to defend the indefensible.

In normal circumstances, the moral difference that separates genocide from other crimes safeguards it from any form of justification. For instance, war can be, and is often, justified. By definition, war pits adversaries against each other, designated as enemy combatants. Genocide has no adversaries and enemies; it only has perpetrators and victims. Also, the principle of “just war” makes war morally acceptable, whereas genocide can never be morally acceptable – the idea of “just genocide” is unimaginable. For this reason, rules of war have been established under the Geneva Convention and the violation of such carries a lower order of moral opprobrium than genocide. It is therefore denialist to speak about war and genocide as though they are one and the same.

Genocide deniers have intentionally conflated war and genocide as carrying the same moral reprehension and in so doing they have replaced the Genocide Convention with the Geneva Convention. This is a common tactic when talking about the RPA war in the then Zaire in 1996 where deniers elevate alleged violations of rules of war to the moral order of genocide as a means of creating the equivalence that belittles and justifies the genocide against the Tutsis since, after all, “both sides killed.”

Consider this. The new post genocide government in Kigali perceived as a security threat the situation where the genocidal army was right across its border – reorganizing, rearming and reassuring the refugees in the camps and the people inside Rwanda that it would return to “complete the job”, as one of the Ex-FAR (former Rwandan army) commanders put it while expressing regret that Tutsis were not entirely wiped out. The government also viewed with suspicion both the support (military and diplomatic) that the Mobutu and French governments were providing to the defeated army and the misdirection of international humanitarian aid for genocide survivors in Rwanda to the refugee camps under the control of genocidal forces.

This context – the mixture of the genocidal army (Ex-FAR) and genuine refugees in the same camps had the former use the latter as a human shield, itself a violation of the Geneva Convention – warrants the question of whether the RPA’s decision to force its way into the camps to rescue the refugees from the genocidal forces, as well as the removal of Mobutu from power, was a just war.

There’s rarely a rational argument that denies that this was a just war. The “What” is generally accepted as warranted and, in fact, necessary. Some debate is often around “How” the operation was conducted with allegations that in the process the RPA methods contravened the Geneva Convention. However, to elevate this allegation of the “How” to the status of genocide cannot stand scrutiny after conceding the part of the “What”. One, a just war cannot have an intent to commit genocide. These are competing imperatives.

Second, the repatriation of more than a million people (estimated at 1.5 million) to Rwanda following the operation negates the motive for genocide because there would be no point to repatriate refugees to Rwanda if the intent was to ex- terminate them. In other words, for a genocidal intent there would be no repatriation; moreover, there were already Hutus living in Rwanda and going about their lives and a genocidal intent would have started with their execution. For similar reasons, the genocidal government didn’t go into the neighbouring countries looking for Tutsis to kill; it started with those in its close proximity. Furthermore, at the time of the operations, the RPA had integrated members of the former army to the tune of at least one-third of its entire force. This begs the question whether Hutu soldiers were deployed to commit genocide against fellow Hutus.

Therefore, if the RPA has a case to answer then it is with reference to Geneva Convention, not the Genocide Convention. Significantly, even that war itself happened within the context of efforts to neutralize a still formidable genocide threat – the FAR. In this context, accusations against the RPA would be similar to those that could be leveled against the allied forces in their efforts to dismantle the Nazi regime during World War II.

The moral difference between genocide and war crimes does not invite comparison and explains why two conventions were conceived instead of creating just one of them. Crucially, the intent of the terminological clarification is not meant to minimize the death that happens during war. Rather, it is to underscore that ambiguity is one of the key tools in the arsenal of genocide deniers. It is how they politicise genocide because even as they deny it, they realize that genocide is the crime of crimes, a crime like no other and for which there cannot be any justification or mitigating circumstances.

If denial is allowed to thrive then it is not just the last stage of genocide. It is at once the last and first stage of genocide because it sets the ground for recurrence. Those who are well-intentioned and perpetuate unpremeditated denial that mocks survivors and other people of goodwill across the world can only show this intention by the willingness to educate themselves on a subject they wish to pronounce themselves upon. But those who harbour genocide ideology and practice flagrant denial must be exposed, their intentions made clear, and the law enforced to protect society and humanity from the recurrence of genocide.

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