East West Street: On the Origins of "Genocide" and "Crimes Against Humanity"

by Philippe Sands

Perhaps it was the power of Lemkin’s word, but as Lauterpacht feared, there emerged a race between victims, one in which a crime against humanity came to be seen as the lesser evil. That was not the only unintended consequence of the parallel efforts of Lauterpacht and Lemkin. Proving the crime of genocide is difficult, and in litigating cases I have seen for myself how the need to prove the intent to destroy a group in whole or in part, as the Genocide Convention requires, can have unhappy psychological consequences. It enhances the sense of solidarity among the members of the victim group while reinforcing negative feelings toward the perpetrator group. The term “genocide,” with its focus on the group, tends to heighten a sense of “them” and “us,” burnishes feelings of group identity, and may unwittingly give rise to the very conditions that it seeks to address: by pitting one group against another, it makes reconciliation less likely. I fear that the crime of genocide has distorted the prosecution of war crimes and crimes against humanity, because the desire to be labeled a victim of genocide brings pressure on prosecutors to indict for that crime. For some, to be labeled a victim of genocide becomes “an essential component of national identity” without contributing to the resolution of historical disputes or making mass killings less frequent.