Case Study on Nazi Genocide.

The creation of International Law (as domestic law) is shaped by events and ideals as well as the very real political constricts.  The usage of the term genocide and an assessment of whether an event fits within the model of genocide is both an emotive and political one. The historical elements of commonality that links successive but separate events of mass killings such as Cambodia’s killing fields to Stalin’s liquidation of the kulaks would distinctly disqualify them from the strict legal definition of genocide as defined in the genocide convention. The forces of international realpolitik, the restrictive nature of international law and the inherent restrictive confines of legal interpretation, means the definition of “Genocide” was necessarily restrictive in nature.  The model that Lemkin had in mind was mainly the killing of civilians on ethnic/racial grounds, by political, social, cultural, economic, physical, biological, religious and moral means referred to singular event in his mind, the Holocaust.  In his eyes Genocide meant, “signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”

In assessing whether the Holocaust fit the requirements of the Genocide convention, we look to Article 2, which provides:

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.” 

The holocaust certainly fits into the parameters of genocide as defined in Article 2.  Whether one picks the earlier example the processes of Arynization which excluded Jews from education and cultural life to the latter examples of massacres carried out by the Einsatzgruppen squads to the purpose built extermination centers at Auschwitz-Birkenau.

Depending on the case study chosen, you may need to consider whether the events examined constitute genocide.

Not all atrocities carried out by the Nazis can qualify under the strict legal definition of genocide, The Nazis euthanasia program against the mentally handicapped, would not qualify as “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, nor killing of political opponents, the murder of the polish intelligentsia.  Shaw argues that the element of intention to destroy a racial group can be problematic as the victim might not belong neatly to a certain ethic or national, ethnical, racial or religious group.  As “most genocides have involved schemes of social classification, embedded in fantastical belief systems, which themselves mutate rapidly according to the exigencies of the political struggle in which the perpetrators were involved”.  Therefore if there were a group of victims classed as enemies of the state persecuted because of the ethnicity and/or political beliefs, it would certainly be unjust if prosecution were only to brought for the victims due to their ethnicity/race etc.  The perpetrator’s notion of race, ethicality, religious grouping can be fundamentally different from either the victim’s sense of grouping or to outside bystanders.  

Further as to the question of intent, there exist a tension between the  intentionalist, functionalist schools in explaining the Holocaust, whether there was systematic and constant policy intent to carry on the policy of extermination, or as Welch explains the functionalist view “There was no straight path from Hitler’s anti-Semitic intentions to Auschwitz but rather a ‘twisted road’ characterised by haphazard development, improvisation and ad hoc decisions by various groups within a chaotic polycratic system of rule.” 

Preliminary bibliography of references

Bresheeth, Haim., et al.  Introducing the Holocaust. New York: Totem, 1994.

Gilbert Martin. The Holocaust - The Jewish Tragedy, London: Fontana, 1987.

Goldhagen, Daniel Jonah. Hitler’s Willing Executioners Ordinary Germans and the Holocaust. New York: Vintage, 1997.

Gross, Jan T. Neighbours - The Destruction of the Jewish Community in Jedwabne, Poland 1941. London: Arrow, 2003.

Justman, Stewart. The Jewish Holocaust. New York: Writers and Reader, 1995.

Malanczuk, Peter. Akehurst’s Modern Introduction to International Law 7th ed. London: Routledge, 1997.

Power, Samantha. "A Problem from Hell": America and the Age of Genocide. New York: Perennial, 2003.

Shaw, Martin. War & Genocide. Cambridge: Polity, 2003.

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