The Crime of Destruction and the Law of Genocide: Their Impact on Collective Memory
Aldershot: Ashgate, 2007
208 pp, $99.95 (hbk)
Few, if any, genocide scholars doubt that there are defects in the Genocide Convention, but Caroline Fournet’s committed and often forceful argument moves the discussion beyond some of the most commonly noted defects – for example, its restricted lists of the protected groups and of the acts constituting the crime – into new territory. Noting that, in Israel Charny’s words, “most genocides are marked by massive indifference, silence and inactivity,” her work “focuses on the reasons for this ‘social amnesia’ and, to this end, adopts a legal perspective.” The rationale of her study “is to show that genocide fails to be adequately remembered due to the inherent defects of the law of genocide itself.” The Convention, she argues, is defective because “it has been absolutely unable to achieve what it was supposed to achieve, namely, the prevention and punishment of the crime of genocide.” It “has overall remained not enforced because not enforceable, both in terms of prevention and punishment, and has thus completely failed to ensure the memory of this most atrocious crime” (all quotes from p xxxi). This book is therefore ambitious in that it not only finds the law inadequate to its manifest purposes, but indicts it for failing to achieve something that it was not designed to do.
Fournet pursues her argument through a discussion that is historical and sociological as well as legal. Her criticisms include that the Convention does not refer to the processes of “dehumanization” and “racialization” (“which genociders will use to define the group they aim at destroying”); that its omission of “cultural genocide” from the list of acts artificially separates cultural and physical destruction; that its “in whole or in part” provision has led to the development of confusing and immoral quantitative criteria; that in criminalizing only individuals it fails to expressly acknowledge state and other collective responsibility for genocide; that it fails to incriminate denial, which is an intrinsic component of genocide; that it “has failed to be used as a universal instrument for the prevention and punishment of this atrocious crime”; and that it has impeded the use of the word “genocide” even in clear cases of the crime. “In this context,” Fournet concludes, “asserting that the Genocide Convention is an instrument contrary to international law and that it is therefore null and void should not be considered a major legal revelation,” but “the only possible conclusion” (p 108).
Far be it from a sociologist to defend the law, but it seems that here law is being asked to bear too great a burden. Granted that legal memory is a significant contribution to social memory, law cannot bear the major responsibility for its failings, which clearly have complex social causes; nor is this the main point of the law of genocide. While the Convention’s weaknesses have certainly contributed to the failures of signatory states and the UN to “prevent and punish” genocide, they cannot be considered the primary reason for these failures. Despite its weaknesses, the Convention has offered plenty of scope for prevention and punishment, and the primary causes of international failures to accomplish these goals must be sought in political contexts which Fournet does not even begin to analyze.
Fournet’s proposal that “cultural genocide” should be considered an “act” of genocide skates over the complex relations between cultural suppression and social destruction, and her proposal to criminalize denial in general, based on various European laws against Holocaust denial, seems to indicate that she simply has not thought about the complexities of denial or the ramifications of such a proposal in a world where there have been many genocides – on the classification of which even scholars do not agree. Moreover, Fournet is rather prone to sweeping statements, for example: “History has shown that, in all cases of genocides, the perpetrators of the crimes made sure that the human bodies of their victims were totally destroyed in order for them to be unrecognizable” (p 14). This assertion begs the question of whether all victims are actually killed, which not even the Convention supposes, and seems to be based not on a study of “all cases” but mainly on the Nazi genocide, to which the book refers largely, but not wholly, to the exclusion of other cases.
There is much of interest in this book, but in placing all the burden of genocide on the law, Fournet demands too much of it, and so too easily dismisses the Convention. She thus fails to answer the interesting legal questions: how can the existing law be better interpreted and enforced; and what form would a comprehensive revision of the Convention, to produce an adequate international law of genocide, actually take?
University of Sussex