We Should Invoke the Genocide Convention in Response to Fatal Police Shootings

Over 100 years ago, W.E.B. Du Bois famously predicted that, “The problem of the 20th century would be the problem of the color line.” His prognosis was audacious when he uttered those words, but the sentiment takes on a more ominous warning today. The problem facing the 21st century is the problem of genocide. The enormity of the problem suggests that even terms such as “racial bias” or “racial injustice” are too limiting.

In today’s environment, it is getting easier to talk about racial injustice. We talk about systemic racism, but what we should be thinking and talking about is the possible extermination of a people. This is because the United States has moved beyond both overt Jim Crow and beyond unconscious bias in its criminal punishment system to what I call “institutionalized genocide.” This is an arguably contentious phrase, but it represents a scientific framework which allows us to analyze conditions and appropriately characterize what is happening to Black people in the 21st century, ostensibly through the criminal legal system.

Therefore, the gross impact of the broader criminal punishment system could and should be examined. Institutionalized genocide offers an analytical frame to understand systemic destructive treatment of Black people. While genocide appears to many to singularly denote killings through massacre and annihilation, its definition also includes the creation of “conditions of life calculated to bring about destruction, in whole or in part.” Unfortunately, seldom do people examine the internationally adopted parameters of the term genocide and then compare them with the treatment of Black people in the United States by the criminal legal system. If one were to do so, state-sponsored genocide against Black people, particularly as it relates to police killings, is at least plausible, if not undeniable.

We must question why Philonise Floyd, the brother of George Floyd, went to the United Nations to obtain justice. Was it because he did not believe he could obtain accountability here in the United States? In the same way that he sought the international arena for relief, Black people must also seek to use the international law around genocide in U.S. courts as a means of preventing and punishing the police violence and abuse of our communities.

In 1948 the General Assembly of the United Nations adopted the International Convention on the Prevention and Punishment of the Crime of Genocide. It said whether committed in times of peace or war, genocide is a crime under international law. International law, as outlined by the United Nations in the Geneva Convention, defines genocide as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Those actions include “killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.”

Pursuant to the Convention, genocide is not the only punishable act. Related acts — such as conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in its commission — are also punishable. The international definition of genocide reminded us that those who commit genocide or related acts shall be punished, whether they are constitutional rulers, private individuals or elected officials. It took the United States 38 years from the time of the first hearing to ratify the convention. I believe the delay was rooted in fear that African Americans would use the treaty to their advantage. Segregationists believed that the ratification of the agreement would subject the United States to punishment based on its treatment of Indigenous and Black peoples.

The genocide convention was passed in 1948, and in 1951, W.E.B. Du Bois and others presented the United Nations with a heavily documented petition chronicling the genocidal suffering, mental assaults and crimes against humanity inflicted on Black people. These accounts were detailed in the book, We Charge Genocide.

The Genocide Convention set a record for being the most scrutinized non-military treaty ever to be considered by the U.S. Senate. The hearing took place over 13 days and the transcript was over 2,000 pages, according to Stephen Klitzman, the chair of an American Bar Association committee that chronicled the history of the Genocide Convention’s ratification process. Four decades after its adoption by the United Nations, and amidst a belief that civil rights progress addressed challenges, the U.S. Senate finally consented to ratification in 1988.

What is significant is that it is the only international human rights treaty adopted by the United States that is self-executing, meaning it has the ability to be directly enforced in court. The Convention against Torture, the Convention on the Elimination of Racial Discrimination, and others, are largely symbolic gestures as applied to the U.S. as they require the adoption of specific legislation for enforcement. Indeed, legislation implementing the Convention against Torture limits its scope to civil suits against one acting in an official capacity for a foreign nation, or acts of torture committed outside the country.

Since there is already legal standing to punish perpetrators of genocide in the U.S., why are we not considering this law as the basis for lawsuits and legal action against law enforcement, state governments and federal bodies? Based on the definition of genocide, we can make an argument that the U.S. is guilty of genocide against Black people.

There is a rise of killer cops who prey on Black people, including children. The world is shocked by the horrific, unjustified and disproportionate murders, violence and abuse of Black people by law enforcement. These instances constitute a violation of Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, which guarantees “the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution.” Likewise, the International Covenant on Civil and Political Rights, Article 9, guarantees the “right to liberty and security of person,” and Article 14 guarantees “equality before the courts and tribunals.” These treaties, however, ratified by the U.S. in 1994 and 1992, respectively, are limited in that they each included upon signing a declaration that the provisions would not be actionable in U.S. law absent implementing legislation, among numerous other limiting provisions.

Our ancestors were (and in some cases, continue to be) victims of kidnapping and enslavement, convict leasing, Jim Crow, lynching, redlining, educational and health disparities, and mass incarceration. Each of these acts are human rights violations which have never been remedied. We have experienced the trauma of cases like Oscar Grant in Oakland, Trayvon Martin in Florida, Sandra Bland in Texas, Freddie Gray in Baltimore, Akai Gurley in Brooklyn, Breonna Taylor in Kentucky and Ahmaud Arbery in Georgia to the seemingly unending list of Black people killed by whites operating under the color of law.

In 1951, extrajudicial killings of Black people were framed under the banner of genocide, and that frame must be resurrected today. I submit there is no other way to truly examine the systematic and routine killings of Black people across the country other than genocide. If we do not take the killing of Black people seriously and hold killer cops accountable, we will knowingly tolerate the wiping out of generations of Black people by the state.

Advocates and lawyers should go to court and use provisions of the Genocide Convention to challenge those who have attempted to destroy, in whole or part, a national, ethnic or racial group of people. Police killings under color of law, and the damaging conditions of life negatively impacting generations, constitutes genocide – the human rights crisis facing 21^st-century Black America. Those who commit genocide must be held accountable.