There have been many other killings of this kind in America’s history.
In May 2022, a white supremacist with an assault rifle opened fire in a Tops Supermarket that served a predominantly Black neighbourhood of Buffalo, New York. He went there to murder Black people. When his shooting stopped, 10 people were dead and three others injured. In 2019, a white supremacist, out to kill Hispanic people, went into a Walmart in El Paso, Texas, whose clientele are mostly Latinos. Wielding an assault rifle, he shot and murdered 23 people. In 2018, a white supremacist, armed with an assault rifle, went into a synagogue in Pittsburgh, Pennsylvania, and murdered 11 people because they were Jewish.
From the distant past to more recent times, there have been many other killings of this kind in America’s history.
And there comes a time when good sense requires putting aside the seduction of stylized intellectualism that tends to wax whenever the word “theory” is flashed across an idea, luring the mind away from a serious depravity that such an idea truly represents. It is surely too much to think that anyone would add the adjective “great” to such a depravity, presented as a “theory.”
It is entirely proper now to tie to these killings the grotesque psyche that is presented under the tutorial-ready banner of “replacement theory”—an infirmity characterised by an obsession that certain identifiable persons belong to a racial, ethnic, religious or national group viewed as “replacing” the group to which the persons harboring the obsession belong.
Whenever that obsession was implicated in homicides in recent times, there has been a tendency for well-meaning people to describe the killings as “hate crimes” or “racist crimes.” All done with a salve that the strongest scorn was poured upon a heinous crime.
Of course, these are “hate” crimes, “racist” crimes. But, there is much more to them than that.
The perpetrators of the Buffalo, El Paso, and Pittsburgh shootings—as well as other acts of racist violence—explicitly used language from the “replacement theory,” a racist and antisemitic conspiracy positing that non-whites are being brought into the United States, usually according to a Jewish-controlled plan, in order to “replace” the white and Christian population.
The Buffalo shooter framed his attack as “the White Man … fighting back.” He warned “non-whites on white lands” to leave, because “as long as the White man lives you will never be safe here.” The El Paso shooter wrote of a “Hispanic invasion” and “white people being replaced by foreigners” and echoed a chant from a 2017 white supremacist rally in Charlottesville, Virginia: “Jews will not replace us.” The Pittsburgh shooter wrote on social media that Jewish people were “bringing in invaders to kill our people.”
A particularly dangerous feature of these killings inspired by the so-called “replacement theory” is the perverse claim of “genocide” or “slaughter” of white Americans, needing to be addressed by these mass shootings of innocent people. The danger comes from the cognitive distortion that the world has seen in American politics in the manner of the “Big Lie” technique. As Hannah Arendt once reminded the world, “The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
It is, of course, one thing to bullhorn a deliberate falsehood in order to “control the story” of why you lose elections. It is quite another matter to engage in the kind of gaslighting that inflicted so much heartache upon humanity even in recent memory. When German ultra-nationalists were peddling under the Nazi swastika ugly rhetoric similar to what is now making the rounds in the United States as “replacement theory,” Germany’s mainstream society did not take them seriously. They dismissed Nazis as fringe fanatics whose lunacy would burn itself out soon enough on the plains of free speech. But, Nazism fueled by lethal antisemitic rhetoric didn’t burn itself out. It incinerated, instead, millions of innocent peoples’ lives in the gas chambers and crematoria of Auschwitz, Birkenau, and other Nazi concentration camps.
Indeed, there is nothing at all new in the mindset behind the so-called “replacement theory.” It is all but a fancy new name applied to an ancient phenomenon. Such a mindset was almost always implicated in all the stories of history’s genocides—down to the last big one in Rwanda in 1994. Victims were perceived to have “taken over” the economy, the culture, the politics, or the genealogical pedigree of the society in which they lived. Hence, the macabre project to exterminate or decimate them or drive them away or violently put them in their marginalized places.
Since the mass killings in Buffalo, El Paso, and Pittsburgh, as understood, are motivated by the obsession that animates the so-called “replacement theory,” it is time to consider the aptness of a different adjective to describe them beyond just “hate crimes” or “racist crimes.” That adjective is “genocidal”—in the real legal sense of the notion.
Genocide is a term the use of which is viewed by many as a verbal nuke. Its deployment generates tremulous feelings: especially in those who instinctively think that the equivalent of six million people—800,000 at least—must be killed before its use can ever be proper.
But, murdering people in the name of “replacement” theory takes on its very own significance when you consider that article II(a) of the Convention on the Prevention and Punishment of the Crime of Genocide (the “Convention against Genocide”) says that killing members of a national, ethnic, racial or religious group amounts to genocide when such a killing is “committed with intent to destroy, in whole or in part, . . . [the] group as such.”
In international law, the Akayesu case stands apart as the first time an international court tried the crime of genocide. In their judgment, the Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR)—also known popularly as the Rwandan genocide tribunal—addressed the issue of the number of victims it takes to justify the use of the term genocide, as a matter of law. “Contrary to popular belief,” the Tribunal held (para 497), “the crime of genocide does not imply the actual extermination of group in its entirety … .”
But, how many victims of the forbidden act does it take to have a genocide? “[I]n concrete terms,” held the tribunal (para 521), “the act must have been committed against one or several individuals” (emphasis added).
So it is that killing one person can amount to an act of genocide—provided the killing was actuated by a specific intent to totally or partially destroy the ethnic, racial, national, or ethnic group to which the victim belonged.
But, why so? It is because the real victims of the crime of genocide—as opposed to murder, even mass murder—are the targeted group as such. More so than the joint or several individuals—undifferentiated in their identities—that happened at the time to bear the brunt of the physical attack against the group to which they belonged. As the Trial Chamber of the Rwanda genocide tribunal explained (para 521), “[T]he victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual.” Raphael Lemkin, the jurist who in 1945 coined the term “genocide,” had also explained that “[g]enocide is directed against the … group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the … group.”
The point is apparent enough. But, in case it needs further disambiguation, then consider this. D intends to destroy, say, a racial group as such in whole or in part. In whole or in part, the destruction of a group is necessarily a physical act. And it has to start somewhere. If the only means of the destruction readily available to D are his own efforts and an assault rifle, it means that the physical act of destroying the racial group would necessarily start one person at a time. In killing each of the victims, D commits the crime of murder against them. Viewed from the lens of genocide, however, those murders constitute the physical act of at least a partial destruction—one person at a time—directed against the racial group. D does not kill the victims because of their own individuality that may or may not include group affinity. He kills them because that is a necessarily physical process of carrying out his intent to destroy the group—or part thereof—to which the victims belonged. Therefore, the murders are acts of genocide directed against the racial group being targeted.
The upshot of the foregoing analysis is this. According to the international law of genocide, as explained by the Rwanda genocide tribunal, the killing of one person—actuated by a specific intent to destroy in whole or in part the racial, ethnic, religious, or national group to which the victim belonged—can amount to a crime of genocide against his or her group.
There is an appreciable difference between hate crime and genocide as explained above. In the case of a hate crime, individuals may also be targeted for their group identity. D may attack V because V belongs to a group that D hates deeply. In that case, the motivating factor for the attack is hatred of the group. It is not the same thing as an intent to destroy the group in whole or in part. But acts of genocide are distinguished by that specific intent to contribute to the destruction of the group—their fundamentally eliminationist character.
On that analysis, the mass killings at the Buffalo Tops supermarket, the El Paso Walmart, and the Pittsburgh synagogue do qualify in international law as crimes of genocide—as they were motivated by the obsession that the groups to which the victims belonged are replacing or have replaced the group to which the murderer belongs.
The Issue of Intent to Destroy a “Substantial” Part
But, the American domestic law adds a substantial wrinkle to the discourse (pun fully intended); which wrinkle, I am bound to acknowledge, has unfortunately perturbed what in my view is a proper understanding of the law of genocide as correctly articulated in the Akayesu judgment. (I fully addressed that confusion in my book, International Law and Sexual Violence in Armed Conflicts (2012) from pages 168 and following.)
In the Genocide Convention Implementation Act of 1987, Title 18 USC § 1091, popularly known as the Proxmire Act, the U.S. Congress reformulated the definition of the basic offence of genocide in order to make it punishable as part of US federal laws.
In § 1091(a), the basic offence is laid down along the following lines: “Whoever, whether in time of peace or in time of war […] with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such: […] kills members of that group [etc] or attempts to do so, shall be punished […]” (emphasis added).
In § 1093(8), the phrase “substantial part” is defined as meaning “a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part.”
The addition of the qualifier “substantial part” to the American iteration of genocide runs into appreciable difficulties—particularly from the perspective of the preventive purpose of the Convention against Genocide. For one thing, since such a significant qualifier was not added to the Convention, the rule that domestic law does not alter international law will fully apply—especially when such a domestic reformulation has a potential to detract from an important purpose of an international convention.
The Preventive Purpose of the Convention against Genocide
It helps here to recall the overall purpose of the Convention against Genocide, in order to see why the extra-textual addition of the “substantial part” qualifier plays havoc to that overall purpose.
The overall purpose of the Convention against Genocide is two-fold—as reflected in the long title of the instrument: the “Convention on the Prevention and Punishment of the Crime of Genocide.” Notably, the purpose is not only to punish; but, first and better still, to prevent the crime. Prevention of a conduct requires proactive action. It should be obvious that law serves society better if a malevolent crime could be prevented by intercepting it in its tracks, rather than punishing it after the fact. Only cold comfort can come from crying over spilled milk—or shall we say, “spilled blood.” Family members would much prefer to have their loved ones alive than to see the stiffest punishments imposed on their murderers. It would have been preferable for our humanity, in my view, if we had a convention against genocide the anticipatory interpretation of which might have prevented the death of six million European Jews during World War II, rather than wait until the consummation of such a “substantial” degree of destruction that the crime is undisputedly accepted as genocide. And the lessons of that experience must guide how we interpret the Convention against Genocide that we now have.
From that point of view, the ordinary acceptation of just the adverbial phrase “in part” as it appears in the Convention against Genocide, unencumbered by the Proxmire Act’s further qualifier “substantial,” serves the preventive purpose more sensibly. This is because the international community—at least motivated by the exhortations of responsibility to protect (R2P)—need not wait too long to be sure that a genocide needing prevention is apparently underway. In addition to the collective obligations imposed on the international community, R2P includes a call to each State to protect its own population from genocide, which “entails the prevention of such crimes, including their incitement.” A discernible pattern that portends or involves a widespread or systematic murder of members of a group may trigger that clarion call to preventive action.
Conversely, the encumbrance of externally reading in the qualifier “substantial” to the phrase “in part” is clearly hazardous to the preventive purpose of Convention against Genocide. In the turbulence of an unfolding circumstance which hindsight might reveal after the fact as genocide, it would be difficult in most cases to ascertain the state of mind of the perpetrators and planners, in order to discern whether or not they harbor joint or several intent to destroy a “substantial” part of the targeted group. The longer the delay in making that determination, the longer it would take for the international community to react and intervene with the level of urgency and action needed to prevent further commission of the crime.
The world and U.S. President Bill Clinton’s government learned that very lesson the hard way during the Rwandan genocide that erupted seven years after the Proxmire Act was passed by the U.S. Congress.
On Mar. 25, 1998, four years after the Rwandan genocide, Clinton flew into the Kigali Airport and delivered an apology to Rwandans for the failings of his administration—and of the international community led in fact by that administration—in not doing much to prevent the Rwandan Genocide as it was unfolding in 1994. “We did not act quickly enough after the killing began,” Clinton admitted. “We did not immediately call these crimes by their rightful name: genocide.”
You couldn’t blame anyone in the audience who rolled their eyes at Clinton’s words, thinking them too convenient, too late. This, because a review of historical records would make clear that the failure to call the killings by “their rightful name: genocide” was almost uniquely that of the Clinton administration. In a scathing rebuke, Samantha Power, in her famous article titled “Bystanders to Genocide”, attributed that failure to the Clinton administration’s dogged determination to do nothing.
Starkly emblematic of the administration’s refusal to call a genocide by its “rightful name” was the exchange between Christine Shelly (a U.S. State Department spokesperson) and Alan Elsner of Reuters, in a press conference of June 10, 1994—more than 60 days after the genocide had erupted. As quoted in Power’s article as elsewhere, the State Department spokesperson persistently refused to acknowledge that genocide was occurring, even after she had admitted that “acts of genocide” were being committed:
Elsner: How would you describe the events taking place in Rwanda?
Shelly: Based on the evidence we have seen from observations on the ground, we have every reason to believe that acts of genocide have occurred in Rwanda.
Elsner: What’s the difference between “acts of genocide” and “genocide”?
Shelly: Well, I think the — as you know, there’s a legal definition of this … clearly not all of the killings that have taken place in Rwanda are killings to which you might apply that label. … But as to the distinctions between the words, we’re trying to call what we have seen so far as best as we can; and based, again, on the evidence, we have every reason to believe that acts of genocide have occurred.
Elsner: How many acts of genocide does it take to make genocide?
Shelly: Alan, that’s just not a question that I’m in a position to answer.
It is, of course, entirely possible that even without a domestic revision of the conventional definition of genocide, such as the Proxmire Act’s “substantial part” qualification to the definition of genocide in U.S. federal law, it could still be possible for particular governments to devise political ruses to mask their refusal to trouble themselves with preventing an unfolding genocide. But, that ruse is made easier with a domestic legal definition of genocide that requires the minimum of intent to destroy a “substantial part” of a protected group.
And, here, we must return to the particular quandary that the Proxmire Act’s definition of “substantial part” poses to the prospect of preventing an ongoing genocide. It is recalled that in 18 USC § 1093(8), “substantial part” is defined as “a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part.” The question is: How easy would it be for a policymaker to make that determination in time to take meaningful action to prevent an unfolding genocide?
All this is to say that the so-called “replacement theory” is an ideology that provokes more than concerns about a “hate crime” when it leads people to kill their fellow human beings. One question that eminently arises is whether the killing motivated by that “theory” may be considered from the lens of genocide, as proscribed in international law as a crime that must not only be punished but must—better still—be prevented.
In a country like the United States, with a strong criminal justice system, where federal prosecutors have institutional capacity which they can deploy—if they choose—to bring accountability robustly to bear against those who commit crimes, it may be contended as being all in the day’s work of a national ethos of law and order if criminals are appropriately punished for murders described as “hate crimes,” notwithstanding the failure to invoke the further notion of genocide. That point of view surely has its merits. But it is not the only reasonable view.
There are considerations that recommend the word “genocide” as appropriate to describe the typology of homicide motivated by concerns that the victims belonged to a racial, ethnic, religious, or national group perceived to have “replaced” within society the group to which the assailant belongs.
For one thing, the classification of a crime as “genocide” makes the conduct a crime in international law. In many respects, there is concrete value in that state of affairs. One value is that it engages the possibility of deploying applicable international mechanisms, as appropriate, for purposes of accountability—when the national authorities with the primary right and responsibility of jurisdiction prove unwilling or unable to do justice. While some national jurisdictions (notably the United States) may not need (or accept) that kind of assistance to do justice on the facts, there are many countries blighted with significant problems of white supremacy, where international assistance may be needed to prosecute and try international crimes. Hence, the cause of humanity may be hindered if different standards are employed to measure what amounts to violations of international law involving similar fact patterns.
But, beyond the question of deploying applicable international mechanisms, the proper classification of conduct as genocide in international law has the further advantage of engaging the domestic jurisdiction of other countries to prosecute the suspects, their accomplices, their inciters, and their aiders and abetters—in the possible exercise of universal jurisdiction over the crime of genocide. In other words, U.S. federal criminal law may narrowly focus on the actual perpetrators of “hate” or “racist” crimes, leaving untouched others whose own conducts may come within the broader penumbra of the fault. But, for its part, international law also brings within its scope of accountability politicians, broadcasters, and other demagogues implicated not only in direct and public incitement to genocide but also in complicity in genocide more broadly. In the Rwandan example, Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze and Georges Ruggiu were demagogues, media personalities, pundits, or combinations thereof who were prosecuted and convicted for direct and public incitement to—or complicity in—genocide, notwithstanding that they did not actually commit the crimes with their own hands. Leon Mugesera was deported from Canada, so that he could face trial in Rwanda for incitement to commit genocide because of a fiery speech he gave more than a year before the Rwandan genocide.
In the United States, the role that persons in equivalent positions play in inciting rhetoric needs to be understood, so that preventative solutions also address the complicity of public personalities. And, while such personalities may now believe themselves immune to international law, they should worry about the possibility of prosecution in other countries—or even the United States—to the extent that their conduct can be classified as clearly running afoul of the international law of genocide. It is crucial for Americans to understand the role those public personalities play in incitement, and to encourage them to modify their conduct accordingly. There is a belief in the United States in the unmitigated good of free speech, and a belief that “it cannot happen here.” But free speech can—and has been used to—incite genocide according to international law. People need to know that.
At any rate, as pointed out earlier, it ultimately bears keeping in mind that the so-called “replacement theory” is an ugly old phenomenon, now burnished with a new name with the word “theory” tagged on. From time immemorial, genocides were always actuated by the mindset that the targeted group posed a problem for the society in which they lived. That is the bottom line. We are seeing it again.
That being the case, we must not wait until a “substantial” number of Black people, Latino people, Jewish people, etc., have been killed before we recognise genocide as implicated in the spate of murders now being stoked by the so-called “replacement theory”, notwithstanding that these murders are also rightfully described as “hate” crimes.
The international crime of genocide is of concern to the international community as a whole. All the necessary measures should be taken by the international community—including, in this case, the United States, using the mechanisms available to it domestically—to prevent such crime proactively or punish those who commit it.
Originally published by the Just Security, 05.31.2022, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.