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12/28/2011

Hannibal Travis: On the Original Understanding of the Crime of Genocide
Michael Ramsey

Hannibal Travis (Florida International University College of Law) has posted On the Original Understanding of the Crime of Genocide on SSRN. Here is the abstract:

This article is an extended exercise in "genocide originalism." To wit, some leading genocide scholars have propounded a purportedly “legal” definition that is unduly narrow. Purportedly based on the drafting history of the Genocide Convention, this narrow definition actually rests upon incomplete and selective references to legal sources. This narrow definition also has important effects on debates concerning whether partial genocides, such as by “ethnic cleansing,” may constitute the crime of genocide. 

In this article, I survey evidence that the drafters and ratifiers of the Genocide Convention did not adopt a requirement of genocidal intent that would be nearly impossible to satisfy, namely an intent to totally destroy a race. Efforts to equate genocidal intent with total racial destruction have been disturbingly common within the United Nations system over the past decade, including in the findings of International Court of Justice (ICJ) on genocide in Bosnia and Herzegovina, of the International Commission of Inquiry on Darfur (ICID) on genocide in western Sudan and eastern Chad, and of the trial chamber of the U.N.-backed International Criminal Court (ICC) on genocide in Darfur. At the root of this misunderstanding is the equation of the intent to destroy a group required by Article II of the Genocide Convention with a deliberate plan or policy of a state to exterminate the members of an entire racial group, or a total genocide. Contrary to this distortion of the Convention, its drafters rejected efforts to limit genocide to total destruction, a plan or policy of destruction, or a motive of racial hatred. This article contends that the original understanding of the crime of genocide did not require a total genocide, and that this original understanding is reflected in the text of the Genocide Convention, the *travaux preparatoires*, and the course of performance of the treaty by the United Nations and its member states.

The originalism debate is usually associated with constitutional interpretation (especially U.S. constitutional interpretation) but of course there are wider implications.  As this article suggests, a less-well-known debate involves whether treaties should be given evolving or original meaning.  It's interesting to consider the extent to which constitutional originalist arguments do or don't carry over into treaty interpretation.