Journal of Genocide Research

ISSN: 1462-3528 (Print) 1469-9494 (Online) Journal homepage: www.tandfonline.com/journals/cjgr20

Can there be genocide without the intent to

commit genocide?

Guenter Lewy

To cite this article: Guenter Lewy (2007) Can there be genocide without the intent to commit
genocide?, Journal of Genocide Research, 9:4, 661-674, DOI: 10.1080/14623520701644457

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Published online: 09 Nov 2007.

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Journal of Genocide Research (2007), 9(4),
December, 661–674

DOCUMENTS AND DISCUSSION

Can there be genocide without

the intent to commit genocide?
GUENTER LEWY

The question posed in the title of this essay appears to be nonsensical, if not out-
right self-contradictory, but in fact it is not. As we will see below, several well-
known students of genocide have argued that it is possible for genocide to take
place without an intent to cause genocide. Such a view, I submit, would first
have to be squared with the text of the Genocide Convention of 1948. According
to Article II of the convention, the crime of genocide consists of a series of acts
“committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group as such [my italics].”1 Since genocide is a legal term in
international criminal law, the definition of the convention establishing the
crime of genocide assumes a prima facie authoritativeness. The issue of the defi-
nition of genocide should not be used to exculpate crimes that do not reach the
threshold of the legal definition of genocide. However, as I will argue in this
essay, the disregard of intentionality can stand in the way of a full understanding
of events that appear to constitute genocide and lead to a distorted finding of
responsibility. The significance of the intent issue goes well beyond the question
of how best to define genocide as a crime under international law.

The meaning of the Genocide Convention’s intent clause

Practically all legal scholars accept the centrality of the intent clause in the Gen-
ocide Convention. Genocide, writes Alexander K. A. Greenawalt, “is a crime of
specific or special intent, involving a perpetrator who specifically targets
victims on the basis of their group identity with a deliberate desire to inflict
destruction upon the group itself.”2 It is not enough that a perpetrator acted
with knowledge that his actions contributed to the genocide in question, i.e.
that he had general intent. The perpetrator must have had special or specific
intent, he must have desired and specifically intended the result of genocide.

ISSN 1462-3528 print; ISSN 1469-9494 online/07/040661-14 # 2007 Research Network in Genocide Studies
DOI: 10.1080/14623520701644457
GUENTER LEWY

The prevailing view, as stated by Nehemiah Robinson in a well-known commen-

tary, is that “acts of destruction would not be classified as Genocide unless the
intent to destroy the group existed or could be proven regardless of the results
achieved.” The destruction of a group without such intent “would not fall under
the definition.”3
During the deliberations leading up to the adoption of the Genocide Conven-
tion, some delegates argued for a clear specification of the reasons or motives
for the destruction of a group. In domestic law motive is often a minor matter.
Whether A breaks into the house of B and steals the money he finds there in
order to pay his debts or to buy himself a fancy television is immaterial. The
crime of burglary does not depend on the motive for the act. Two individuals
may intend to commit the same crime but for different reasons.4 Finding a
motive may help establish that an individual intended a particular act. The fact
that an individual who killed a person strongly hated his victim and repeatedly
threatened him will make it more difficult for him to argue that the killing was inci-
dental rather than deliberate, but in many cases the motive for a crime is irrelevant
for establishing guilt. In defining the crime of genocide, on the other hand, it was
felt by the delegates of some countries, motive was important. Modern war, argued
the representative of New Zealand, for example, is total and some instances of
aerial bombing might destroy an entire group. Hence unless the convention
listed the reasons for the destruction of groups, such bombing might be considered
a case of genocide.
The issue of motive was finally resolved by adding the words “as such.” Instead
of listing a variety of incriminating or exculpating motives, the term “as such” was
held to stand for the aim of destroying the group qua group.5 This solution did not
satisfy all delegates, but it became part of the final text anyway. As Robinson
phrases the current status of the intent clause: besides the intention of destruction
“there must be a specific motive for the act, derived from the peculiar character-
istics of the group.”6 The destruction of the group must aim at ending the group as
a national, ethnical, racial or religious entity. Or as another legal scholar puts it:
“Evidence of hateful motive will constitute an integral part of the proof of a gen-
ocidal plan, and therefore of genocidal intent.”7 Not satisfied with the language of
the Genocide Convention, the United States ratified the convention with the
“understanding” that acts in the course of armed conflicts “committed without
the specific intent required by Article II are not sufficient to constitute genocide
as defined by this Convention [my italics].” The implementing legislation (the
Proxmire Act of 1988) follows up on the terms of this “understanding” and
speaks of “the specific intent” to destroy a group in whole or in part.8
The strong emphasis of the convention on intentionality also means that there
can be no such thing as “negligent genocide.” In 1978, the report of a United
Nations Special Rapporteur on genocide proposed modifying the intent require-
ment so that the convention would reach acts of omission as well as commission,
and in 1985, another rapporteur made the same suggestion. However, no action
has been taken on these proposed changes.9 The intent requirement of the conven-
tion is also reaffirmed in Article 30 of the Rome Statute of the International

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Criminal Court adopted in 1998.10 In its commentary on the 1996 Code of Crimes
Against the Peace and Security of Mankind, the International Law Commission
referred to specific intent as “the distinguishing characteristic of this particular
crime under international law”:
The prohibited acts enumerated [. . .] are by their nature conscious, intentional or volitional
acts which an individual could not usually commit without knowing that certain conse-
quences were likely to result. These are not the types of acts that would normally occur
by accident or even as a result of mere negligence [. . .]. [A] general intent to commit one
of the enumerated acts combined with a general awareness of the probable consequences
of such an act is not sufficient for the crime of genocide. The definition of this crime requires
a particular state of mind or a specific intent with respect to the overall consequences of the
prohibited act.11

Two ad-hoc tribunals established by the United Nations to try violations of inter-
national humanitarian law committed in the former Yugoslavia and Rwanda,
respectively, have addressed the role of intent in the crime of genocide. On
August 2, 2001, General Radislav Krstic, the Serbian commander of the Drina
Corps operating in the Srebrenica area in July 1995, was convicted of genocide
for his role in the massacre of more than 7,000 male Bosnian Muslims. What
had begun as ethnic cleansing, the court ruled, turned into genocide—the deliber-
ate killing of all Muslim men of military age.12 Even though there was no evidence
that Krstic either personally killed anyone or that he had been present at the mass
killings, it was enough that he was held to have had knowledge of the plan to
destroy the Bosnian Muslims of Srebrenica and participated actively in it.
Krstic was given a jail sentence of 46 years, reduced to 35 years on appeal.13
On the other hand, the Serb Goran Jelisic, former commander of a detention
camp in the Brcko region of northwest Bosnia and Herzegovina, was acquitted
in late 1999 of the charge of genocide because he had killed “arbitrarily” and “ran-
domly” rather than with “an affirmed resolve to destroy in whole or in part a group
as such.” The prosecution had argued that it was sufficient if the accused knew the
consequences of his acts—the extermination of a group—though he may not have
sought it, but the court rejected this view. The crime of genocide, the tribunal
declared, required a specific intent, and this meant that a perpetrator, “by one of
the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the
destruction, in whole or in part, of a national, ethnical, racial or religious group,
as such.”14 Instead, Jelisic was sentenced to 40 years imprisonment for crimes
against humanity, a charge to which he had pleaded guilty.15
The Trial Chamber of the International Criminal Tribunal for Rwanda, in the
Akayesu case decided on September 2, 1998, also ruled that the crime of genocide
requires a specific intent to commit genocide. Even in the absence of a confession,
the special intent to destroy a protected group as such could be inferred from the
speeches of the accused and the massive nature of the atrocities committed.
Killings had been carried out in a planned and concerted manner. The fact that
the accused had deliberately and systematically targeted victims on account of
their membership in a particular group (the Tutsis), while excluding the

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members of other groups, enabled the Chamber to infer the genocidal intent of a
particular act.16
Critics of the Genocide Convention have taken exception to the limited scope of
the convention’s definition of protected entities, especially the exclusion of politi-
cal groups, as well as the ambiguity of the requirement that a group be destroyed
“in whole or in part.” Such criticism has also targeted the intent provision.

Structural violence as a form of genocide

The crucial role of intentionality in establishing the crime of genocide, empha-
sized by legal scholars and UN-sponsored tribunals, has been challenged by
Isidor Walliman and Michael N. Dobkowski in their book Genocide and the
Modern Age, published in 1987. The two genocide scholars questioned the idea
that “only intentional or planned massive destruction of human lives should be
called genocide,” an assumption that leads to “the neglect of those processes of
destruction which, although massive, are so systematic and systemic, and
that therefore appear so ‘normal’ that most individuals involved at some level
of the process of destruction may never see the need to make an ethical decision
or even reflect upon the consequences of their action.” In the modern age, “the
issue of intentionality on the societal level is harder to locate because of the
anonymous structural forces that dictate the character of our world.” Hence in
contemporary society, characterized by the domination of individuals by forces
such as market mechanisms and bureaucracies, Walliman and Dobkowski
argued, the emphasis on intentionality is almost anachronistic. It has “the tendency
to gloss over structural violence which through various mechanisms can be
equally as destructive of human life as many an intentional and planned
program of annihilation.”17
The Australian historian Tony Barta, who acknowledges his indebtedness to
Marx, has applied the idea of structural violence to the fate of the Australian abor-
igines. Genocide, he argued, need not have “intentionality as its defining charac-
teristic.” There can be terrible destruction—genocidal outcomes—without
“purposeful annihilation.”18 In Australia waves of settlers introduced sheep and
cattle which became the “instruments of genocide.” The destruction of the abor-
igines was accomplished not primarily through individual acts of killings, numer-
ous as these were, but by “the objective nature of the relationships” between
(white) capitalist wool producers and (black) hunter–gatherers which proved to
be totally incompatible. Both the aboriginal inhabitants and the invaders needed
the land and the ensuing conflict resulted in a “relationship of genocide.”19
Driven from their lands and deprived of their traditional food supplies, the abor-
igines died. Barta admits that by far the greatest number of deaths—possibly two
thirds—were caused by diseases such as smallpox against which the natives had
no immunity, but he dismisses the significance of this statistic. A whole race,
he concludes, became “subject to remorseless pressures of destruction inherent
in the very nature of the society. It is in this sense that I would call Australia,
during the whole 200 years of its existence, a genocidal society.”20

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In a critique of Barta, the sociologist Frank Chalk has argued against the down-
playing of the role of individuals in the occurrence of genocide. “Systemic vari-
ables facilitate genocide, but it is people who kill.” The same structures of
society do not always lead to the same consequences. States eschewing capitalism
such as China and Cambodia have perpetrated huge massacres of ethnic groups
and social classes. Arguments which minimize the importance of intentionality,
Chalk points out, “also distract our attention from the role of absolutist or
utopian or uncompromisingly idealistic doctrines or ideologies in the great mass
killings of the twentieth century.” The search for the perfect society became the
recipe for the most horrible bloodshed in which millions lost their lives.21
The abandonment of the criterion of intentionality, I would add, also makes
it difficult to assign guilt. Who is to be held responsible for structural violence?
Guilt is individual; one cannot punish a social system, violent and unjust as it
may be. The principle of individual responsibility for international crimes was
affirmed by the International Military Tribunal that tried the German major war
criminals. Crimes against international law, declared the Nuremberg Court in its
judgment delivered on September 30– October 1, 1946, “are committed by men,
not by abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced.”22 According to the
judgment of the International Court of Justice rendered in the case of Bosnia
and Herzegovina v. Serbia and Montenegro on February 26, 2007, “states can
be held responsible for genocide,” but proof has to be established that the acts
of genocide were committed by “persons or entities ranking as organs of the
respondent.”23 This is in line with Article IV of the Genocide Convention
which provides punishment for “persons committing genocide,” irrespective of
“whether they are constitutionally responsible rulers, public officials or private
individuals.”

Genocidal consequences as proof of genocide

The Holocaust, the Nazis’ attempt to destroy the Jewish people, is an instance of
genocide in which the intentions and plans of the perpetrators are fully known.
Leading Nazi personalities—from Hitler down to Himmler and Hans Frank and
officials in the Ministry for the Occupied Territories—repeatedly and approvingly
talked of the destruction of the Jews that was underway. All this and more is
caught on thousands of original documents captured after the defeat of
Germany that detail the decision-making process leading up to the Final Solution
and tell in abundant detail why and how the process of annihilation unfolded. The
names of the men who made and implemented the plan of destruction are recorded
and we know why they committed their crimes. Unfortunately, this kind of rich
inculpatory evidence is rare, and in many cases of genocide the guilty intent of
the perpetrators can be inferred only from the acts themselves. Proof of specific
intent, as required by the Genocide Convention, may be difficult.
These difficulties have led some genocide scholars to abandon the criterion of
intentionality altogether and to argue that what counts is not intent but results and

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consequences. “Very few governments,” writes Henry R. Huttenbach, “can be

legally indicted to the satisfaction of the standard rules of evidence for their inten-
tions.” Hence the crime of genocide “must stand on the result first and foremost”;
it should be defined “in terms of the actual fate experienced by the group” and not
on the basis of “the goals of the perpetrators.” Genocide, according to Huttenbach,
“is any act that puts the very existence of a group in jeopardy.”24
Huttenbach’s formulation, in my view, is inadequate. As I will try to demon-
strate presently through the example of the tragedy of the American Indians, the
disregard of intent can mislead us and produce wrong conclusions. A huge loss
of life in and by itself, even consequences that threaten the existence of a
group, is not proof of genocide.

The fate of the American Indians

The story of the encounter between European settlers and America’s native popu-
lation does not make for pleasant reading. “We took away their best lands,”
observed John Collier, commissioner of Indian affairs under Franklin
D. Roosevelt in 1938, “broke treaties, promises; tossed them the most nearly
worthless scraps of a continent that had once been wholly theirs.”25 Helen Hunt
Jackson’s recitation of forced removals, killings and callous disregard of Indian
rights in her famous book A Century of Dishonor 26 is one-sided. The book does
not dwell on the mutilation of bodies during Indian raids on undefended farm-
steads, the scalping and torture of captives and other atrocities. Still, her indict-
ment captures some essential elements of what happened. There can be no
doubt that the Indians of America suffered horrendously and experienced near-
extinction. Hence it is not surprising that Indian rights activists and some histor-
ians too have used the terms “genocide” and “holocaust” to describe the fate of the
Indians of the New World.
Thus, according to Ward Churchill, a professor of ethnic studies at the Univer-
sity of Colorado, the reduction of the North American Indian population from
more than 12 million in 1500 to barely 237,000 in 1900 represents a “vast geno-
cide [. . .], the most sustained on record.” This “holocaust was and remains unpar-
alleled, both in terms of its magnitude and the degree to which its goals were
met.”27 By the end of the nineteenth century, writes David E. Stannard, a professor
of history at the University of Hawaii, Native Americans had undergone the
“worst human holocaust the world had ever witnessed, roaring across two conti-
nents non-stop for four centuries and consuming the lives of countless tens of
millions of people.”28 In the judgment of Lennore Stiffarm and Phil Lane, Jr.,
“there can be no more monumental example of sustained genocide—certainly
none involving a ‘race’ of people as broad and complex as this—anywhere in
the annals of human history.”29
The charge of genocide against the Indians has gained wide currency in Europe
and elsewhere. Relying in part on the work of Stannard, a French specialist on
American economic and social history has concluded that in describing the fate
of the American Indians the term genocide is indeed “appropriate.”30 In the

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eyes of Jehuda Bauer the destruction of the Indian people by Anglo-Saxon settlers
was “clearly genocide.”31 In this country few professional students of American
history share this view, but many others in the academic community and
beyond have accepted the charge of genocide. The argument became popular at
the time of the Vietnam War when historians opposed to the conflict drew parallels
between our actions in Southeast Asia and earlier examples of supposedly
ingrained American viciousness toward non-white people. The author of a book
entitled The American Indian: The First Victim called America’s white civiliza-
tion as originating in “theft and murder” and the wars against the natives
“efforts towards the genocide of the Indian people.”32 The troops under the
command of the famous Indian scout Kit Carson, wrote the historian Richard
Drinnon in 1980, were “forerunners of the Burning Fifth Marines” who set fire
to Vietnamese villages, and the Puritans at Fort Mystic in 1637 piled up a body
count “that equaled or exceeded that at My Lai in 1968.”33 By the end of the
1970s, a study of the changes in high school American history textbooks con-
cludes, Christopher Columbus had ceased to be a hero and instead had become
“a genocidal criminal, responsible for the wreckage of the unspoiled civilizations
that preceded the European arrival.”34
The 1992 quincentenary of the landing of Columbus brought to the fore more
accusations of genocide and revealed the rampant guilty conscience. The National
Council of Churches adopted a resolution that called Columbus’ landfall “an inva-
sion” resulting in the “slavery and genocide of native people.”35 In a widely read
book entitled The Conquest of Paradise, Kirkpatrick Sale charged the English
“and their United States successors” with following a policy of extermination
that lasted four centuries.36 An Encyclopedia of Genocide, published in 1999
and edited by the genocide scholar Israel Charny, includes an article on genocide
against the American Indians authored by Ward Churchill which argues that the
“express objective” of the Indian wars waged by the United States was “extermi-
nation.”37 The “only appropriate way” to describe the way white settlers treated
the Indians, the Cambodia expert Ben Kiernan has written, is “genocide.”38

A demographic disaster
It is a firmly established fact that a mere 250,000 Native Americans were still alive
in the territory of United States at the end of the nineteenth century. Still in scho-
larly contention, however, is the number of Indians at the time of first contact with
the Europeans. Some students of the subject speak of a “numbers game.”39 Since
the 1960s, in particular, observes the anthropologist Shepard Krech, population
estimates have become “sharply politicized.” Indian scholars have accused non-
Indian demographers of minimizing the size of the aboriginal Indian population
in order to make the decline less severe than it was.40
The disparity in estimates is enormous. In 1928 the ethnologist James Mooney
arrived at a count of 1,152,950 Indians in all tribal areas north of Mexico at the
time of initial contact with Europeans.41 By 1987, in American Indian Holocaust
and Survival, Russell Thornton gave the figure of five-plus million Indians in the

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coterminous United States area in 1492.42 Considering this estimate as far too low,
Lenore Stiffarm and Phil Lane, Jr. called Thornton “a somewhat confused Cherokee
demographer” who seeks academic respectability by aligning himself with the low-
counters, and they proposed the number of 12 million native inhabitants within the
present borders of the United States.43 This figure is indebted to the anthropologist
Henry Dobyns, who in 1983 estimated the aboriginal population of North America
as 18 million and that in today’s United States as about 10 million.44
From one perspective, these differences, however startling, may seem beside
the point; there is ample evidence, after all, that the arrival of the white man trig-
gered a drastic reduction in the number of Native Americans. Nevertheless, even if
the higher figures are credited, they alone do not prove the occurrence of genocide.
To address this issue properly we must begin with the most important reason for
the Indians’ catastrophic decline—namely, the spread of highly contagious dis-
eases to which they had no immunity. This phenomenon is known as a “virgin
soil epidemic”; in North America it was the norm and it resulted in staggering
death rates. The most lethal of the pathogens introduced into the New World by
the Europeans was smallpox. Sometimes this disease incapacitated so many
adults, including hunters, at the same time that as many tribesmen died of
hunger and starvation as of the disease itself. In several cases entire tribes
became extinct. Other killers included measles, influenza, whooping cough,
diphtheria, typhus, bubonic plague, cholera and scarlet fever. Although syphilis
was apparently native to parts of the western hemisphere, it, too, was probably
introduced into North America by Europeans.45
There is some disagreement about the number of the various epidemics that
decimated the Indian populations, about the timing of their impact, and the
extent of their spread. Population declines varied in different regions.46
However, the basic facts about the mortality caused by disease are unquestioned.
The most hideous enemy of Native Americans was not the white man and his
weaponry, concludes Alfred Crosby, “but the invisible killers which those men
brought in their blood and breath.”47 It is estimated that between 75% and 90%
of all Indian deaths were the result of epidemic disease.48 Ann Ramenofsky
speaks of “a minimal population loss of 90% from all introduced disease.”49
To some this is enough in itself to warrant the term genocide. David Stannard
has insisted that the Indians who died of introduced disease “were as much the
victims of the Euro-American genocidal war as were those burned or stabbed or
hacked or shot to death, or devoured by hungry dogs.” The Jews who died of
disease and starvation in the ghettos, he argues, are counted among the victims
of the Holocaust. In the same way, the native people of the Americas died “in
vastly higher numbers and proportions, directly as a result of the larger genocidal
conditions created by violent European invasions of their communities.” As an
example of such genocidal conditions Stannard refers to the Franciscan missions
in California which he calls “furnaces of death.”50
There are several problems with this argument. It is true that the cramped quar-
ters of the missions, with their poor ventilation and bad sanitation, encouraged
the spread of disease, but unlike the Nazis, whose intentions were anything but

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benevolent, the missionaries were sincerely concerned for the welfare of their
native converts. Labour was obligatory, food and medical care were often
inadequate, and, in conformity with prevailing norms, there was corporal punish-
ment.51 However, none of this can compare with the fate of the Jews in the ghettos.
The missionaries had an inadequate understanding of the causes of the diseases
that afflicted their charges, and, given the state of medical knowledge, there was
little they could do for them. By contrast the Nazis knew exactly what was happen-
ing in the ghettos, but quite deliberately deprived the Jewish inmates of both food
and medicine. Unlike in Stannard’s “furnaces of death,” the deaths that occurred
there were meant to occur.
The larger picture also does not conform to Stannard’s idea of disease as
an expression of “genocidal conditions.” True, the forced relocations of
Indian tribes was often accompanied by great hardship and harsh treatment;
the removal of the Cherokee from their homelands to territories west of the
Mississippi in 1818 took the lives of thousands and has entered history as the
“Trail of Tears.” However, the largest loss of life occurred well before the creation
of the reservations, and some of the most severe epidemics hit the Indians after
minimal contact with European traders. Later, some colonists welcomed the
large number of deaths and saw them as a sign of divine blessing that made the
land of the natives available to them, but this does not change the basic fact
that the Europeans did not come to the New World in order to infect the
Indians with deadly diseases.
Ward Churchill not only agrees with Stannnard that the deaths from alleged
“natural causes” must be considered part of the overall pattern of genocide
against the Indians, but takes the argument a step further by charging a policy
of biological warfare. The waves of epidemic disease that afflicted the indigenous
populations during several centuries, he writes, “were deliberately induced, or at
least facilitated, by the European invaders.” There was nothing unwitting or unin-
tentional about the way the great bulk of North America’s native population
disappeared. “It was precisely malice, not nature, that did the deed.”52
We do know of one instance of biological warfare against the Indians. In
1763, a particularly serious Indian uprising threatened the British garrisons
west of the Allegheny Mountains. Sir Jeffrey Amherst, commander-in-chief of
British forces in North America, concerned about his limited resources to put
down the rebellion and disgusted by what he saw as the Indians’ treacherous
and savage mode of warfare, wrote to Colonel Henry Bouquet at Fort Pitt:
“You will do well to try to inoculate the Indians [with smallpox] by means of
blankets, as well as to try every other method, that can serve to extirpate this
execrable race.” It is not clear whether Bouquet carried out Amherst’s sugges-
tion, though we know that he approved of it. It is documented that on or
around June 24, 1763, two traders at Fort Pitt gave two visiting Delaware
Indians two blankets and a handkerchief from the fort’s quarantined hospital.
One of the traders, William Trent, noted in his journal: “Out of regard we
gave them two blankets and a handkerchief out of the smallpox hospital.
I hope it will have the desired effect.” Smallpox was already present among

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the tribes of Ohio, but some time after this episode there was another outbreak
and hundreds of Indians died.53
During the Yorktown campaign of 1781, a British officer sent 300 smallpox-
infected blacks to the rebel plantations, and there may have been other instances
where the British deliberately used smallpox as a weapon of war.54 However, apart
from Fort Pitt in 1763, no other cases of the deliberate use of smallpox against
Indians have been recorded. The allegation of Ward Churchill that the US
Army deliberately distributed smallpox-infected blankets to Mandan Indians in
183755 is a fabrication, unsubstantiated by any evidence. This instance of aca-
demic fraud was one of several cited by the Standing Committee on Research
Misconduct at the University of Colorado, and led the Interim Chancellor of the
University to announce on June 26, 2006 the initiation of dismissal proceedings
against Churchill.56
The allegation that agents of the US government intentionally infected Indian
tribes with smallpox is also at odds with the attempts of the federal government
to vaccinate the Indian population. Vaccination against smallpox was developed
by the English country doctor Edward Jenner in 1796, and in 1801 President
Jefferson ordered the first Indians to be vaccinated. During the following three
decades, this programme continued, though implementation was slowed by the
resistance of the Indians, who suspected a trick, and by the lack of interest on
the part of some officials. Still, as Thornton writes: “Vaccination of American
Indians did eventually succeed in reducing mortality from smallpox.”57
The charge that the US government should be held responsible for the demo-
graphic disaster that overtook the American Indian population as a result of
various deadly epidemics is thus unsupported by any valid argument or evidence.
The United States did not wage biological warfare against the Indians; neither can
the large number of deaths experienced by Native Americans as a result of disease
be considered the result of a genocidal design. European settlers came to the New
World for a variety of reasons, but the idea of infecting the Indians with deadly
pathogens was not one of them. The experience of the American Indians thus
calls into question the notion that it is possible to determine the occurrence of gen-
ocide by looking at results and consequences. The crucial role of disease in the
decimation of the Indian population drives home the point that a huge death toll
in and by itself is not proof of malfeasance or genocide. The stress of the Genocide
Convention on intentionality is not a mere legalism.
Is there other evidence to support the charge that American Indians were the
victims of genocide? Perhaps there is, though this evidence does not implicate
the national government and involves massacres of small groups of Indians
rather than the Indian people as such. The treatment of Native Americans by
European settlers was often callous and brutal. Settlers on the expanding frontier
treated the Indians with contempt, often robbing and killing them at will. In
California especially, volunteer militias and vigilante groups at times displayed
a flagrantly exterminatory mentality and murdered large numbers of Indians.
The Genocide Convention outlaws the destruction of a group “in whole or in
part,” but does not address the question of what percentage of a group must be

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affected by the destructive acts enumerated in the convention to trigger the crime
of genocide. The prosecutor of the International Criminal Tribunal for the Former
Yugoslavia has declared that the definition requires “a reasonably significant
number, relative to the total of the group as a whole,” though he added that the
actual or attempted destruction should relate to “the factual opportunity of the
accused to destroy a group in a specific geographic area within the sphere of his
control, and not in relation to the entire population of the group in a wider geo-
graphic sense.”58 The trial chamber in the Krstic case, involving the wholesale
killing of Bosnian Muslims in Srebrenica, ruled that “although the perpetrators
of genocide need not seek to destroy the entire group protected by the Convention,
they must view the part of the group they wish to destroy as a distinct entity which
must be eliminated as such.”59 If this principle is adopted, an atrocity such as the
Sand Creek massacre of November 29, 1864 during which a volunteer regiment of
Western settlers attacked an Indian village and killed large numbers of women and
children, even though limited to one group in a specific single locality, could be
considered an act of genocide. Still, it is well to remember that a far larger
number of Indians died from the epidemic diseases unintentionally introduced
and spread by the white man than from outright violence. As the historian
Francis Jennings has observed: “Not even the most brutally depraved of the con-
quistadores was able purposely to slaughter Indians on the scale that the gentle
priest unwittingly accomplished by going from his sickbed ministrations to lay
his hands in blessing on his Indian converts.”60

Conclusion
Intentionality is an important element in domestic law. The difference between
homicide and murder, for example, turns on the degree of intent that is present
in the act of taking life. The negligent killing of a pedestrian by a motorist is
not the same as a deliberate assault that aims at the death of the victim. In the
same way, I have argued in this essay, there is every reason not to ignore the
role of intent in what is often called “the crime of crimes”—the destruction of
an entire group of people or genocide. Proof of specific intent is necessary to
find an individual guilty of genocide, and the role of intent is similarly crucial
when the historian assesses an episode of mass death that occurred in the past.
A large loss of life should be the point of departure for a searching investigation
to determine responsibility, but in and by itself it should never be sufficient for a
finding of genocide. The disregard of intentionality will create an incomplete or
distorted picture and lead to false conclusions.
In the absence of a confession, the establishment of intent in mass deaths that
occurred in the past is often difficult. Yet many times genocidal intent can be
inferred from factors such as the scale of the atrocities committed or the deliberate
targeting of victims on account of their membership in a particular group. “The
emphasis on intent is important,” Kurt Jonassohn has correctly noted, “because
it removes from consideration not only natural disasters but also those man-
made disasters that took place without explicit planning. Many of the epidemics

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of communicable diseases that reached genocidal proportions, for example, were

caused by unwitting human actions.”61 To the victims it makes no difference
whether they died because of a deadly epidemic or as a result of a planned pro-
gramme of destruction. It does make a difference for the assignment of responsi-
bility and guilt and, more importantly, for historical truth.

Notes and References

1 The Genocide Convention was signed on December 11, 1948, and came into force on January 12, 1951. For
the text see: United Nations, Secretariat, Treaty Series, Vol 78, 1951, pp 277ff.
2 Alexander K. A. Greenawalt, “Rethinking genocidal intent: the case for a knowledge-based interpretation,”
Columbia Law Review, Vol 99, No 8, 1999, p 2264.
3 Nehemiah Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs,
1960), pp 58–59.
4 William A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), p 245.
5 Greenawalt, “Rethinking genocidal intent,” p 2278.
6 Robinson, Genocide Convention, p 60.
7 Schabas, Genocide, p 255.
8 Resolution of Ratification adopted by the US Senate on February 19, 1986, and Title 18, Part I, Chap. 50A,
§ 1091, both quoted in Lawrence J. LeBlanc, The United States and the Genocide Convention (Durham,
NC: Duke University Press, 1991), pp 253, 255.
9 Matthew Lippman, “The Convention on the Prevention and Punishment of the Crime of Genocide: fifty years
later,” Arizona Journal of International and Comparative Law, Vol 15, No 1, 1998, pp 464–466.
10 Schabas, Genocide, p 214.
11 Quoted in William A. Schabas, “Was genocide committed in Bosnia and Herzegovina? First judgments of the
International Tribunal for the Former Yugoslavia,” Fordham Journal of International Law, Vol 25, No 1,
2001, pp 49–50.
12 Krstic (IT-98-33-T), Judgment, August 2, 2001, para. 572, www.un.org/icty/cases-e/index-e.htm. See also:
John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (Chicago: University of
Chicago Press, 2003), p 172.
13 Krstic (IT-98-33-T), Judgment, April 19, 2004, para. 275, www.un.org/icty/cases-e/index-e.htm. See also:
Schabas, “Was genocide committed in Bosnia?,” New York Times, April 20, 2004. In a paper presented at a
conference in Yerevan, Armenian, in April 2005, “The ‘odious scourge’: evolving interpretations of the crime
of genocide,” Schabas has characterized recent attempts to broaden the concept of genocide by including
“aiding and abetting” genocide or “complicity” in genocide as “not exactly elegant in their legal reasoning”
(p 16).
14 Cited by Martin Mennecke and Eric Markusen, “The International Criminal Tribunal for the Former
Yugoslavia and the Crime of Genocide,” in Steven L. B. Jensen, ed., Genocide: Cases, Comparison and
Contemporary Debates (Copenhagen: Danish Center for Holocaust and Genocide Studies, 2003), p 336.
15 Jelisic (IT-95-10-T), Judgment, December 14, 1999, para. 139, www.un.org/icty/cases-e/index-e.htm. The
judgment can also be found in André Klip and Göran Sluiter, eds, Annotated Leading Cases of International
Criminal Tribunals, Vol 4: The International Criminal Tribunal for the Former Yugoslavia 1999–2000
(Antwerp: Intersentia, 2002), pp 669– 697.
16 Akayesu ((ICTR-96-4-T), para. 523–24, http://ictr.org. See also: Schabas, Genocide, pp 222–223, and
L. J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law
(Leiden: Martinus Nijhoff, 2005), pp 110 –112.
17 Isidor Walliman and Michael N. Dobkowski, introduction to Genocide and the Modern Age: Etiology and
Case Studies of Mass Death (New York: Greenwood Press, 1987), p xvi.
18 Tony Barta, “Relations of genocide: land and lives in the colonization of Australia,” in Walliman and
Dobkowski, Genocide and the Modern Age, p 238.
19 Barta, “Relations of genocide,” pp 247 –248.
20 Ibid, p 240.
21 Frank Chalk, “Redefining genocide,” in George Andreopoulos, ed., Genocide: Conceptual and Historical
Dimensions (Philadelphia: University of Pennsylvania Press, 1994), pp 56–57.
22 Office of the United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and
Aggression: Opinion and Judgment (Washington, DC: GPO, 1947), p 53.
23 The full text of the judgment can be found on the Court’s website www.icj-cij.org.

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24 Henry R. Huttenbach, “Locating the Holocaust on the genocide spectrum: towards a methodology of
definition and categorization,” Holocaust and Genocide Studies, Vol 3, No 3, 1988, pp 294, 297.
25 John Collier, Annual Report of the Secretary of the Interior (Washington, DC: GPO 1938), p 209, quoted in
Wilcomb E. Washburn, ed., The Indian and the White Man (Garden City, NY: Anchor Books, 1964), p 393.
26 Helen Hunt Jackson, A Century of Dishonor: A Sketch of the United States Government’s Dealings with Some
of the Indian Tribes (Boston: Roberts Brothers, 1888).
27 Ward Churchill, Indians are Us? Culture and Genocide in Native North America (Monroe, ME: Common
Courage Press, 1994), p 38; Ward Churchill, A Little Matter of Genocide: Holocaust and Denial in the
Americas, 1492 to the Present (San Francisco, CA: City Lights Books, 1997), p 4.
28 David E. Stannard, American Holocaust: The Conquest of the New World (New York: Oxford University
Press, 1992), p 146.
29 Lenore A. Stiffarm and Phil Lane, Jr., “The demography of Native North America: a question of Indian sur-
vival,” in M. Annette Jaimes, ed., The State of Native America: Genocide, Colonization, and Resistance
(Boston: South End Press, 1992), p 37.
30 Pap Ndiaye, “L’extermination des Indes d’Amérique du Nord,” in M. Ferro, ed., La livre noir du colonialisme
(Paris: Robert Laffon, 2003), p 57.
31 Yehuda Bauer, “Comparison of genocide,” in Levon Chorbajian and George Shirinian, eds, Studies in Com-
parative Genocide (New York: St. Martin’s Press, 1999), p 38.
32 Jay David, The American Indian: The First Victim (New York: William Morrow, 1972), p 89.
33 Richard Drinnon, Facing West: The Metaphysics of Indian-Hating and Empire-Building (Minneapolis, MN:
University of Minnesota Press, 1980), p 459.
34 Robert Lerner et al., Molding the Good Citizen: The Politics of High School History Texts (Westport, CT:
Praeger, 1995), p 152.
35 Quoted in José Barreiro, “View from the shore: toward an Indian voice in 1992,” Northeast Indian Quarterly,
Vol 7, No 3, 1990, p 16.
36 Kirkpatrick Sale, The Conquest of Paradise: Christopher Columbus and the Columbian Legacy (New York:
Alfred A. Knopf, 1990), pp 281–282.
37 Churchill, “Genocide of native populations in the United States,” in Israel W. Charny, ed., Encyclopedia of
Genocide (Santa Barbara, CA: ABC-Clio, 1999, Vol 2), p 436.
38 Ben Kiernan, “The genocide of Native Americans,” Bangkok Post, July 29, 2001.
39 Brian W. Dippie, The Vanishing American: White Attitudes and U.S. Indian Policy (Middletown, CT:
Wesleyan University Press, 1982), p xv.
40 Shepard Krech, The Ecological Indian: Myth and History (New York: W. W. Norton, 1999), pp 83 –84.
41 James Mooney, The Aboriginal Population of America North of Mexico (Washington, DC: Smithsonian Insti-
tution, 1928), p 2.
42 Russell Thornton, American Indian Holocaust: A Population History since 1492 (Norman, OK: University of
Oklahoma Press, 1987), p 43.
43 Stiffarm and Lane, Jr., “The demography of Native North America,” pp 27–28.
44 Henry F. Dobyns, Native American Historical Demography: A Critical Bibliography (Bloomington, IN:
Indiana University Press, 1976), p 1. See also his Their Numbers Became Thinned: Native American Popu-
lation Dynamics in Eastern North America (Knoxville, TN: University of Tennessee Press, 1983).
45 Krech, The Ecological Indian, p 91; E. Wagner and Allen E. Stearn, The Effect of Smallpox on the Destiny of
the Amerindian (Boston: B. Humphries, 1945), p 94; Karen Ordahl Kupperman, Settling with the Indians: The
Meeting of England and Indian Cultures in America, 1580– 1640 (Totowa, NJ: Rowman and Littlefield,
1980), p 5.
46 Dean R. Snow and Kim M. Lanphear, “European contact and Indian depopulation in the northeast: the timing
of the first epidemics,” Ethnohistory, Vol 35, No 1, 1988, pp 15–33.
47 Alfred W. Crosby, Jr., The Columbian Exchange: Biological and Cultural Consequences of 1492 (Westport,
CT: Greenwood Press, 1972), p 31.
48 Brenda Baker gives this figure for southern New England in “Pilgrim’s progress and praying Indians: the
biocultural consequences of contact in southern New England,” in Clark Spencer Larsen and George
R. Milner, eds, In the Wake of Contact: Biological Responses to Conquest (New York: Wiley-Liss, 1994),
p 36. Estimates for other regions of the country yield a similar ratio. See e.g. the case of the Kalapuya
tribe on the northwest coast in James L. Ratcliff, “What happened to the Kalapuya? A study of the depletion
of their economic base,” The Indian Historian, Vol 6, No 3, 1973, p 27.
49 Ann F. Ramenofsky, Vectors of Death: The Archaeology of European Contact (Albuquerque, NM: University
of New Mexico Press, 1987), p 171.
50 Stannard, American Holocaust, pp 137, 255, and “Uniqueness as denial: the politics of genocide scholarship,”
in Alan S. Rosenbaum, ed., Is The Holocaust Unique? Perspectives on Comparative Genocide (Boulder, CO:
Westview Press, 1996), p 179.

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51 The standard work on the subject is Sherburne F. Cook, The Conflict between the California Indians and
White Civilization (Berkeley: University of California Press, 1976). See also: James J. Rawls, Indians of
California: The Changing Image (Norman, OK: University of Oklahoma Press, 1984).
52 Churchill, A Little Matter of Genocide, pp 2, 156, 151.
53 A. T. Volviler, “William Trent’s journal at Fort Pitt, 1763,” Mississippi Valley Historical Review, Vol 11, No
4, 1924, p 400; Elizabeth Fenn, “Biological warfare in eighteenth-century North America: beyond Jeffery
Amherst,” Journal of American History, Vol 86, No 4, 2000, pp 1554– 1558; Gregory Evans Dowd, War
under Heaven: Pontiac, the Indian Nations and the British Empire (Baltimore, MD: Johns Hopkins Univer-
sity Press, 2002), p 190.
54 Fenn, “Biological warfare in eighteenth-century North America,” pp 1572– 1573, 1580.
55 Churchill, A Little Matter of Genocide, p 155. The story of the “distribution of smallpox-infected blankets by
the U.S. Army to Mandans at Fort Clark” also appears in Stiffarm and Lane, Jr., “The demography of Native
North America,” p 32, and in Jaimes, State of Native America, p 7.
56 http://www.colorado.edu/news/reports/churchill/distefano062606.html.
57 Thornton, American Indian Holocaust, p 101.
58 Quoted in Schabas, Genocide, p 237.
59 Krstic (IT-98-33-T), Judgment, August 2, 2001, para. 590, www.un.org/icty/cases-e/index-e.htm. See also:
William A. Schabas, The UN International Criminal Tribunal: The Former Yugoslavia, Rwanda, and Sierra
Leone (Cambridge: Cambridge University Press, 2006), p 169.
60 Francis Jennings, The Invasion of America: Indians, Colonialism and the Cant of Conquest (Chapel Hill, NC:
University of North Carolina Press, 1975), p 22.
61 Kurt Jonassohn, “What is genocide?,” in Helen Fein, ed., Genocide Watch (New Haven, CT: Yale University
Press, 1992), p 21.

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