Reflections on the trivialisation of genocide: Can we afford to part with the special stigma attached to genocide?
Authors Beitel van der Merwe
Affiliations: Law Researcher and Coordinator of the African Group of Experts on International Criminal Justice
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 116 – 139
Objections to the trivialisation (or banalisation) of genocide are often raised, but almost always without any deeper exploration of the underlying issues giving rise to these objections. This article focuses on the main legal and extra-legal concerns regarding the trivialisation of genocide and addresses the following questions: are concerns regarding the trivialisation of genocide justified? And, why is it important to retain the ‘awesome nature’ of the crime of genocide, especially considering the fact that genocide is widely viewed as constituting a specific, and not necessarily a more egregious, form of crimes against humanity? The article provides a brief discussion of the debate surrounding the existence of a hierarchy of international crimes, more specifically, whether genocide represents the ultimate crime within such a hierarchy. While it appears that genocide does not constitute the ultimate crime in a de jure sense, it is argued that genocide remains de facto the ultimate crime and that it has a special stigma attached to it. The article highlights these features of genocide as the primary cause of two phenomena threatening to undermine the significance of genocide, namely, judicial and extra-judicial trivialisation. These types of trivialisation together with examples are described separately. Finally, the article examines various practical and policy reasons for the maintenance of a sharp distinction, both legally and extra-legally, between genocide and crimes against humanity.