Saturday, August 25, 2007

Defining Genocide: A legal and social perspective

Defining Genocide: A legal and social perspective

Human activity, from the earliest days of recorded history, has been a showcase for violent behavior of all variations. The capacity for violence by human beings against each other has shown to be limitless. In the case of the 20th century, many agree that Genocide has become one of the greatest sources of destructive human behavior that is of concern. With both the Nazi Holocaust of the Jews and Gypsies and the more recent example in Rwanda, such crimes illicit almost unanimous disapproval. But in terms of defining genocide, this has been subject to less of an academic consensus. It is a worthwhile exercise to note two of the more prevalent approaches to defining Genocide - the legal and social science perspectives - and show how they differ in their respective aims.

Definitions of the crime of Genocide, such as those found within the body of international law or as interpreted within the pages of law journals, tend to emphasize a legal framework of mind, and therefore have unique aims that other members of the academic community would not necessarily prioritize. Take for example the legal definition of Genocide, as contained within article two of the Genocide Convention. The main purpose of such as law, as in all other laws, is to present a practical tool for punishing those that have transgressed a codified set of rules, which in turn is based on a moral imperative agreed upon by members of a society. But such laws also need to be applied fairly. In consequence, a legal definition of Genocide must abide by the spirit of the moral law it purports to represent, but must also be necessarily restrictive in such a fashion that its implementation satisfies the basic requirements of fairness and justice.

The Genocide Convention then aims to present a set of non-negotiable rules by which a strict threshold of guilt must be met in order to punish the accused. And this dichotomy results in a closed and restricted definition of Genocide. This scientific approach has a purpose of creating a regulatory and formal environment for judging guilt.

Given the legal emphasis on punishment, it follows that to determine intent is a major practical aim in considering a working definition of Genocide. Payam Akhavan, in a recent article, discusses at length the concept of Dolus Specialis, or specific intent. In fact, it could be argued that the legal definition of Genocide aims to deal more with the accused party than with the victims involved or any other larger social group or phenomena; this is the domain of the social scientists, which will be discussed below.

The aim of social scientists in defining Genocide, as related to their fundamental purpose, is to relate the moral outrage of such crimes and better place them within the larger societal context in which it is felt they belong. Hence, social science definitions of Genocide aim to be more inclusive, open and preventative in their formulations. Sociologist Helen Fein, for example, provides us with a working definition of Genocide that typifies the social approach; one in which the crime is firmly rooted within the social fabric. Therefore, instead of being content with the codification of genocidal behavior offered by lawyers, Fein insists on recognizing the impact that Genocide has on "the socialization of children in the family." (p.16) The open nature of a social scientists approach to defining Genocide, by virtue of the moral impediment, is also evident in the author's Chalk and Jonassohn's formulations, which merely specify the "group," as opposed to the definitional limitations imposed by the legal community i.e. national, ethnical, racial, and religious.

This definition of Genocide also lends to a more preventative aim given that its open nature makes it more adaptive and inclusive of any future scenario that may arise, such as a genocide that may not fit the strict parameters of a given legal definition.

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