Irrefutable Evidence for Unspeakable Crimes? The Role of the Written Order in Proving and Denying Genocide (2024)

The United Nations Special Rapporteur on the occupied Palestinian territories was asked at a U.N. press conference recently whether she had a “written document by the government” proving her conclusion that Israel has the intent to commit genocide in Gaza. Citing the lack of such an order in the Rwandan and Bosnian cases of the 1990s, she replied “It doesn’t work like that,” and went on to outline the basis of her findings.

The interaction hits at the heart of the modern understanding, denial, and prosecution of genocide. The issue is much larger than this U.N. Special Rapporteur’s report, whatever one might think of it, and even larger still than the Gaza crisis itself. There are ongoing debates over whether the definition of genocide is met in situations like Sudan, Xinjiang, Myanmar, and Gaza, not to mention renewed denial by Serbs and their supporters of the 1995 genocide found by international courts to have been committed against Bosnian Muslims in Srebrenica. Accordingly, today and tomorrow’s newspapers, comments sections, and courtrooms have not seen the last of the “written order” question. The concept and role of a “written order” has a long history in proving, prosecuting, and denying genocidal intent.

The Written Order in Law and Life

Genocide, the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (per the Genocide Convention of 1948), inhabits a unique place in our common consciousness. It conjures images of Nazi gas chambers in German-occupied Poland and fields of skulls in Cambodia, forever staining associated individuals and institutions. The Germans were especially meticulous in bureaucratically implementing and documenting their atrocities. Irrefutable proof of genocidal intent thus entices as the most powerful way to condemn one’s enemies and oppressors. A case would ideally open and close with a génocidaire’s signature on an explicit plan or order for extermination.

However, genocidal intent in history has been far less straightforward. Establishing mens rea, a perpetrator’s mental state, beyond any reasonable doubt requires extensive documentation and persuasive legal argument rather than a single “smoking gun.” This is not solely because perpetrators frequently, if not in the main, try to destroy physical evidence or avoid creating it. Contemporary genocide studies have deconstructed genocide beyond a singular event, individual, or program. Genocide is nonlinear and opportunistic, a multidirectional web of elite incentive, local initiative, and social pattern and process. Within this web, bureaucratic paper trails may be sufficient but not necessary to reveal intent.

Thus, modern prosecutions, as will be discussed below, have met the high evidentiary standard of intent by tying together threads such as public rhetoric, general context, and systematic impunity. A defendant’s intent to destroy is both shaped and operationalized through diffuse formal and informal networks, diverse and even contradictory identities, and direct and indirect tactics of extermination. In this context, it is not only unnecessary but unlikely that key leaders relied upon a single incriminating order or expressly written plans to facilitate systematic destruction.

Nevertheless, far from research institutes and The Hague, the simplicity of the written order maintains its appeal. In particular, without an explicit declaration of genocidal intent, denialists attempt to absolve leaders of the most egregious charges and blame scapegoats, subordinates, and the fog of war. The written order offers a straightforward, seemingly legalistic rebuttal to the complex realities of genocide. This appeal is strengthened by the difficulty of proving the specific intent of genocide, a higher bar than other international violations and a definitional prerequisite for determining this particular offense. Attacking intent not only protects the accused but undermines the very existence of a genocide. Accordingly, throughout history, denialists have wielded the written order as a weapon entirely out of proportion with its role in the genocide itself.

The Written Order in Genocide and Justice

Genocide in the turbulent 20th century began with General Lothar von Trotha, Imperial Germany’s governor of the colony of South-West Africa, modern-day Namibia, directly appealing to his soldiers in October 1904 that the Herero people

“will have to leave the country…. by means of guns. Within the German boundaries, every Herero, whether found armed or unarmed, with or without cattle, will be shot. I shall not accept any more women and children.”

Prosecutors thus have a clear declaration of intent in the imprisonment, execution, and starvation of thousands of Herero and, relatedly, Nama people. But these colonial atrocities came decades before the Genocide Convention and a century before the ICC’s founding. Neither the perpetrators nor the victims would see the inside of a courtroom. And the history of the written order would only become more muddled.

The complex role of the written order in modern memory and denial is exemplified in what is now Turkey. In the maelstrom of the First World War and the twilight of the Ottoman Empire, a triumvirate of nationalist Turkish leaders (known as the Young Turks) systematically deported millions of Greeks, Assyrians, and Armenians. Extensive eyewitness accounts and scholarship make clear the exterminatory character of the death marches into the Syrian desert. However, with its founders’ legacy at stake, today’s Turkish government maintains an outspoken policy of denial, in which the written order is a key pillar. Official and academic narratives posit that while excesses were committed in the chaos of an existential war, Interior Minister Talaat Pasha’s notorious Armenian deportation order of 1915 did not call for mass murder, and that no other conclusive evidence of intent exists.

Talaat was not as explicit as Trotha. But decades of research, with incriminating findings as recent as 2019, have illustrated the nonlinearity of the Young Turks’ genocides: the word “extermination” may have first appeared in the telegrams of the provincial governors, but its alignment with the attitude and practice of the central government renders any central directive superfluous. The written order in denialism is robbed of its importance once we understand the deportation order as another stage in genocide, rather than its inception. Regardless, many of the leading perpetrators, Talaat included, met assassins’ bullets before any international tribunals.

Genocide and the written order entered international law and justice as a way of understanding the industrial-scale mass murder of the Second World War. Looking to the Armenian Genocide, Polish-Jewish lawyer Raphael Lemkin both defined genocide and lobbied to make it a prosecutable crime. Though genocide would not be included in the trials of Nuremberg and Tokyo, the trials’ use of command responsibility to prosecute national leadership paved the way for the high-level prosecutions for genocide in Rwanda and Bosnia 50 years later. Furthermore, extensive popular and academic debate over the initiation of the Holocaust and the Nazis’ intent has enshrined genocidal intent and the question of the written order in modern memory and historiography. The lack of a single document from Hitler ordering the Final Solution has extended beyond historians’ exploration of intent into a pillar of Holocaust denialism and Hitler apologism.

The complex investigation and prosecution of genocidal intent was formally tested in the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY). The tribunals emphasized dolus specialis, special intent, which requires the mental status of a perpetrator of genocide be clearly linked to the physical result (in line with the U.N.’s International Legal Commission). This is a high bar — that a perpetrator intended a people’s destruction rather than accepted its possibility. At first glance, it seems nothing short of a guilty plea or an explicit written order could establish mental status here. And though there is criticism of such a barrier to proving the gravest of crimes, ICTR/ICTY trials for genocide were neither deadlocked nor dependent on the existence of a “smoking gun.” The first of dozens of convictions for genocide, ICTR vs. Akayesu, established that intent can be “inferred from a number of facts,” and subsequent decisions connected evidence such as “derogatory language,” “systematic manner,” “weapons employed,” and a “pattern of purposeful action” to reach a finding of genocidal intent.

The tribunals would eventually convict key leaders including Augustin Bizimungu, Théoneste Bagosora, Radovan Karadžić, and Ratko Mladić for the crime of genocide, though the use of broad, varied, and circ*mstantial evidence drew accusations of inconsistency and self-contradiction. Ultimately, the trials did less to set definitive and compelling legal precedent than to establish a modus operandi for the prosecution of genocide, in line with the modern understanding of the complexities of genocidal evidence and causality.

The Written Order Today and Tomorrow

To conclude, an explicit written order has not been nor should be necessary in determining genocide, whether in seeking international justice or building a humane, evidence-based collective memory. The depth of human suffering in today’s cases, like the death and destruction that shocked previous generations, thus warrants the holistic and empowered investigations and tribunals that, while imperfect, offer some answers and consequences for the crime of genocide.

While identity and incentive bar some from ever recognizing the gravest of atrocities, international justice and collective memory have developed a relatively workable approach wherein guilt is not dependent on this simplest of proofs. Understanding genocide as a complex process thus equips us to try perpetrators, teach students, and counter denialists.

IMAGE: The Nama and Ovaherero Genocide Memorial site on the Shark Island peninsula near Luderiz, Namibia, is seen in this April 24, 2023 image. A genocide memorial tombstone was unveiled during a three-day event on Shark Island, a peninsula off the southern city of Luderitz that hosted a camp of the same name — one of several set up during German rule as part of a system of repression. Namibia has no official day designated to commemorate what some historians have described as the 20th century’s first genocide. German settlers killed tens of thousands of men, women and children belonging to indigenous Herero and Nama people who rebelled against colonial rule between 1904 and 1908 in what was then the German colony of South-West Africa. (Photo by HILDEGARD TITUS/AFP via Getty Images)