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Were American Indians the Victims of Genocide? Part 5 by Guenter Lewy V The Genocide Convention was approved by the General Assembly of the United Nations on December 9, 1948 and came into force on January 12, 1951; after a long delay, it was ratified by the United States in 1986. Since genocide is now a technical term in international criminal law, the definition established by the convention has assumed prima-facie authority, and it is with this definition that we should begin in assessing the applicability of the concept of genocide to the events we have been considering. 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" (emphases added). Practically all legal scholars accept the centrality of this clause. During the deliberations over the convention, some argued for a clear specification of the reasons, or motives, for the destruction of a group. In the end, instead of a list of such motives, the issue was resolved by adding the words "as such"--i.e., the motive or reason for the destruction must be the ending of the group as a national, ethnic, racial, or religious entity. Evidence of such a motive, as one legal scholar put it, "will constitute an integral part of the proof of a genocidal plan, and therefore of genocidal intent." The crucial role played by intentionality in the Genocide Convention means that under its terms the huge number of Indian deaths from epidemics cannot be considered genocide. The lethal diseases were introduced inadvertently, and the Europeans cannot be blamed for their ignorance of what medical science would discover only centuries later. Similarly, military engagements that led to the death of noncombatants, like the battle of the Washita, cannot be seen as genocidal acts, for the loss of innocent life was not intended and the soldiers did not aim at the destruction of the Indians as a defined group. By contrast, some of the massacres in California, where both the perpetrators and their supporters openly acknowledged a desire to destroy the Indians as an ethnic entity, might indeed be regarded under the terms of the convention as exhibiting genocidal intent. Even as it outlaws the destruction of a group "in whole or in part," the convention does not address the question of what percentage of a group must be affected in order to qualify as genocide. As a benchmark, the prosecutor of the International Criminal Tribunal for the Former Yugoslavia has suggested "a reasonably significant number, relative to the total of the group as a whole," adding that the actual or attempted destruction should also 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 geographic sense." If this principle were adopted, an atrocity like the Sand Creek massacre, limited to one group in a specific single locality, might also be considered an act of genocide. Of course, it is far from easy to apply a legal concept developed in the middle of the 20th century to events taking place many decades if not hundreds of years earlier. Our knowledge of many of these occurrences is incomplete. Moreover, the malefactors, long since dead, cannot be tried in a court of law, where it would be possible to establish crucial factual details and to clarify relevant legal principles. Applying today's standards to events of the past raises still other questions, legal and moral alike. While history has no statute of limitations, our legal system rejects the idea of retroactivity (ex post facto laws). Morally, even if we accept the idea of universal principles transcending particular cultures and periods, we must exercise caution in condemning, say, the conduct of war during America's colonial period, which for the most part conformed to thenprevailing notions of right and wrong. To understand all is hardly to forgive all, but historical judgment, as the scholar Gordon Leff has correctly stressed, "must always be contextual: it is no more reprehensible for an age to have lacked our values than to have lacked forks." The real task, then, is to ascertain the context of a specific situation and the options it presented. Given circumstances, and the moral standards of the day, did the people on whose conduct we are sitting in judgment have a choice to act differently? Such an approach would lead us to greater indulgence toward the Puritans of New England, who fought for their survival, than toward the miners and volunteer militias of California who often slaughtered Indian men, women, and children for no other reason than to satisfy their appetite for gold and land. The former, in addition, battled their Indian adversaries in an age that had little concern for humane standards of warfare, while the latter committed their atrocities in the face of vehement denunciation not only by self-styled humanitarians in the faraway East but by many of their fellow citizens in California. Finally, even if some episodes can be considered genocidal--that is, tending toward genocide--they certainly do not justify condemning an entire society. Guilt is personal, and for good reason the Genocide Convention provides that only "persons" can be charged with the crime, probably even ruling out legal proceedings against governments. No less significant is that a massacre like Sand Creek was undertaken by a local volunteer militia and was not the expression of official U.S. policy. No regular U.S. Army unit was ever implicated in a similar atrocity. In the majority of actions, concludes Robert Utley, "the Army shot noncombatants incidentally and accidentally, not purposefully." As for the larger society, even if some elements in the white population, mainly in the West, at times advocated extermination, no official of the U.S. government ever seriously proposed it. Genocide was never American policy, nor was it the result of policy. The violent collision between whites and America's native population was probably unavoidable. Between 1600 and 1850, a dramatic surge in population led to massive waves of emigration from Europe, and many of the millions who arrived in the New World gradually pushed westward into America's seemingly unlimited space. No doubt, the 19th-century idea of America's "manifest destiny" was in part a rationalization for acquisitiveness, but the resulting dispossession of the Indians was as unstoppable as other great population movements of the past. The U.S. government could not have prevented the westward movement even if it had wanted to. In the end, the sad fate of America's Indians represents not a crime but a tragedy, involving an irreconcilable collision of cultures and values. Despite the efforts of well-meaning people in both camps, there existed no good solution to this clash. The Indians were not prepared to give up the nomadic life of the hunter for the sedentary life of the farmer. The new Americans, convinced of their cultural and racial superiority, were unwilling to grant the original inhabitants of the continent the vast preserve of land required by the Indians' way of life. The consequence was a conflict in which there were few heroes, but which was far from a simple tale of hapless victims and merciless aggressors. To fling the charge of genocide at an entire society serves neither the interests of the Indians nor those of history. About the author: Guenter Lewy, who for many years taught political science at the University of Massachusetts, has been a contributor to Commentary since 1964. His books include The Catholic Church & Nazi Germany, Religion & Revolution, America in Vietnam, and The Cause that Failed: Communism in American Political Life. 
Top tags: genocide, group, convention, indians, legal, destruction, genocidal, life, population, american
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