Drumbl on Defining Genocide

Mark Drumbl, Washington and Lee University School of Law, has posted Genocide: The Choppy Journey to Codification:

The Genocide Convention’s definition of genocide derives from but also shrinks the concept as initially coined by Raphael Lemkin. This chapter unpacks the notion Lemkin had originated and traces how it narrowed through the treaty-making process. The path that genocide took from invented concept to proscribed crime in turn evokes questions about how the formation of law through treaty can deform the ideas that may have prompted the push towards law. Counterfactually, this chapter contrasts the path of crimes against humanity, which only in very recent years has become cogitated as something that ‘needs’ an owner-occupied international convention. In the end, perhaps, an alternate route for the crime of genocide – which Lemkin did not pursue – would have been for it to have been taken as a term of art, organic and open-ended, and then left to stew and brew at a variety of discursive levels before becoming codified: bricolage from below rather than vulcanization from above. Perhaps had this counterfactual path been taken the legal definition of genocide would have been broader and more congruent with Lemkin’s original understanding. That said, it is clear that the legal definition matches many, though certainly not all, of the fundamental values that Lemkin intended the criminalization of genocide to protect. Moreover, codification permitted an interpretive baton to be passed to judges, who may over time incrementally align the crime of genocide closer to Lemkin’s original framing.