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The Ban on Genocide
By Stan Goldman
From the Daily Journal
This is America. Eventually, we litigate everything. A 9th Circuit Federal Court of Appeal in California has found itself oddly embroiled in the controversial question of whether the state of California or any other state may refer to the 1915-1921 massacres of Armenians at the hands of the Turkish soldiers as “genocide.” By a 2-1 margin (presently on petition for rehearing), a federal appellate panel has favored the position that the political policy of the Bush and Clinton administrations against use of the term “genocide” to describe these events trumps the power of any state to use the word in its legislation.
This conclusion is, however, not only erroneous when applied to the Armenian Genocide, but it also creates a dangerous and far-reaching extension of presidential power. For example, if a president expressed dissatisfaction with Canada and suggested that America stop trading with our neighbor to the north, would that mean that all states must, as a matter of constitutional principal, follow suit in forced lockstep agreement? The problem with such reasoning is the simple fact that presidential preferences are not law. What makes the Court of Appeal decision so dangerous can be demonstrated by the very case they have chosen in which they establish their rule.
Federal opposition to the phrase “Armenian Genocide” may have been a past preference, but it was one never reduced to law or even executive order. For years, Congress has been bitterly divided over this question. Fear of alienating a valuable ally in a delicate region has blocked Congressional proposals to acknowledge the murders of Armenians as qualifying under the definition for that most tragic of all crimes. Therefore, there has simply been an absence of a Congressional declaration expressly supporting (or opposing) the use of this emotionally loaded label. Genocide
What makes the decision in the federal court’s present decision even more peculiar, as well as facially incorrect, however, is this nation’s membership in the United Nations Genocide Convention. The convention is a treaty whose very origins lay in an acknowledgment that these tragic events were “genocide.” This becomes obvious once we understand that with the adoption of any law, legislative history plays a major role in interpreting its true meaning and application.
The legislative history of the convention began in 1944 when Raphael Lemkin, a Polish xxxish Holocaust survivor and professor of law, sought to connect what he likely believed to be the greatest crimes of the 20th century: the destruction of European xxxery and the 1915-1921 Turkish massacre of Armenia.
The word he created was “genocide.” It combined the Greek word “genos” for family or tribe and the Latin word “cide” for killing. His writings soon became a resource for the prosecutions at the Nuremberg Trials.
In 1948, Lemkin took the word he had fashioned and through force of personal will forged it into law. In that year, the U.N. Genocide Convention voted to add genocide to the list of international crimes.
Today, attorneys involved in the prosecution and defense of those charged with genocidal crimes comb Lemkin’s papers in search of legislative intent. So complete was his authorship of this rule that to this day commentators as diverse as scholar Samantha Power, senior director for multilateral affairs at the National Security Council in the Obama administration, and CNN’s chief international correspondent Christiane Amanpour both refer to this genocide treaty simply as “Lemkin’s Law.”
For decades, the convention laid all but dormant thanks to the refusal of the United States to agree to its terms. However, once President Ronald Reagan engaged in the political faux pas of placing a wreath of flowers on the graves of dead Nazi SS officers, his administration suddenly threw its support behind
passage. In 1988, the United States became a signatory to this International Treaty.
As we adopted the obligations of the convention, we were also adopting a legislative history that includes the definition and origin of the very title “genocide.” Thus, an actual treaty rather than an expedient preference to which the United States is a party was created with the specific policy purpose of avoiding future genocides such as that which had been imposed upon the “xxxs” and the “Armenians.”
As a matter of general principle, it would be a great mistake to create a rule that a mere executive preference (especially that of past administrations) constitutionally prevents states from making their own laws. In this particular case, for good or ill, the United States has made the law of the land a treaty that was created acknowledging the genocides of the past (including that of the Armenians) in hopes of preventing the genocides of the future. Perhaps it is now time to acknowledge this simple truth.
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Editor’s Note: Stan Goldman is a professor of law at Loyola Law School and director of its Center for the Study of Law & Genocide. He filed an amicus brief in Movsesian v. Versicherung seeking to clarify how the term ‘genocide’ impacts U.S. foreign policy.
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