Respect for the Law of War Tells Us Nothing about Genocide

It was by poring over the decrees and regulations in Nazi-occupied Europe that the jurist Raphael Lemkin coined, in 1944, the word “genocide”. He drew a practical conclusion from this at once: genocide had to be expressly prohibited in time of war, by amending the 1907 Hague Regulations — the instrument that contains the rules on military occupation — and a separate treaty had to oblige every State to write into its criminal code the protection of the groups living on its territory: for genocide, as he put it, is a problem not only of war but also of peace.

Yet he was writing at a time when military occupation was governed by no rules other than those of the Hague Regulations (the Fourth Geneva Convention, adopted in 1949 precisely to protect civilians, including the population of occupied territories, did not yet exist), and when the law of war (today also called international humanitarian law) governed only conflicts between States. An internal war then fell outside its scope. It would take Common Article 3 of the four Geneva Conventions of 1949, and later the development of further rules, for the law of war to concern itself with internal conflicts as well. Nothing in Lemkin’s scheme was designed for genocide committed in the course of an armed conflict without occupation, or for genocide committed by a State on its own territory in the midst of a civil war. These, however, are the situations from which most of the genocide allegations made since have arisen.

Lemkin’s wish was not granted in any event. Neither the Geneva Conventions nor the instruments adopted later wrote the prohibition of genocide into the law of war. Another path was taken: that of a separate instrument, the 1948 Genocide Convention, which makes genocide a crime in time of peace as well as in time of war and obliges States to prevent and punish it.

But how does one measure whether a civilian loss is proportionate, especially when the calculations made by military commanders are not known? The fact remains that neither the Genocide Convention nor the treaties governing war say anything about how the two relate to one another. Yet every war brings death and terrible suffering among civilians. How, then, are we to know whether we are faced with genocide, or “merely” with a war? For Lemkin, whoever respects the law of war cannot commit genocide, since that law rests on the idea, inherited from Rousseau, that wars are to be fought between armed forces and not against civilian populations. The principle is an old one, and it is sound: since the St Petersburg Declaration of 1868, the only legitimate aim that States should pursue in war is to weaken the military forces of the enemy. It does not, however, settle the question, for the law of war contains a great many flexible rules which, while serving that aim, tolerate losses and suffering among civilians. Take, for example, those that accept civilian losses as collateral damage, provided they are not excessive in relation to the anticipated military advantage (the so-called proportionality rule) and that the required precautions have been taken. But how does one measure whether a civilian loss is proportionate, especially when the calculations made by military commanders are not known?

This margin of discretion widens further when a party to an armed conflict no longer sets itself the aim of weakening the opposing forces, but of annihilating the adversary: no longer its military wing, but the organisation itself, as in wars waged in the name of national security. The proportionality assessment in military attacks is thereby distorted: the anticipated military advantage, which the law of war requires to be “concrete and direct” when it has to be weighed against civilian losses, expands until it merges with victory itself, and there is hardly a civilian loss left that cannot be presented as proportionate.

It is therefore perfectly possible for a party to a conflict to pursue, alongside the weakening of the opposing forces, or even their annihilation, the destruction in whole or in part of a national, ethnic, racial or religious group (which is precisely the hallmark of genocide) while claiming to comply with the law of war, and while causing enormous civilian losses that an indulgent reading of some of its rules will even serve to justify.

The real problem lies elsewhere. To establish whether genocide has been committed in time of war, it is not even necessary to enter the labyrinth of whether a party’s actions comply with the rules of the law of war. First, because the prohibition of genocide is not conditional upon a prior finding that this law has been violated. Second, because the two bodies of rules do not protect the same thing. The prohibition of genocide protects the right of certain groups to exist as such; the law of war seeks to reduce the suffering that war causes, and says nothing about the right of those groups to exist. Nothing therefore rules out the possibility that a party to a conflict may pursue genocide in the course of a war, or by means of a war, without ever breaching the law that governs it. Imagine a levée en masse: as the enemy approaches, the civilian population of a town, belonging to a particular ethnic group, spontaneously takes up arms. It thereby becomes a lawful military target. If the enemy kills them, the law of war is respected, and nothing prevents those killings from amounting to genocide, provided they are accompanied by the intent to destroy the group.

The question that matters is not how a war is fought, but what it seeks to destroy. A war can be waged in accordance with the rules and still have as its horizon the destruction of a human group.