War Balint, J., (2011). He defined genocide as

War is fought against one’s adversary’s armies. However, in
genocide, the war is against a group of people. A country’s ruler or another
group wages war on a group of people to exterminate them, to get rid of them
perpetually. People are not only killed in genocides, but their entire
existence is attacked. Their enemies often attempt to erase all traces of their
presence, including their culture and their history, Friedman, M., (2013).

Raphael Lemkin, a Jewish-Polish lawyer who migrated to
America during the World War II, was the first to coin the term genocide in
1944 in his book titled; Axis Rule in
Occupied Europe, Balint, J., (2011).

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He defined genocide as a coordinated plan to demolish the
essential foundations of the life of national groups, with the aim of
obliterating the teams themselves. He also maintained that genocide has two
phases; the extinction of the state structure of an oppressed group and
imposing of the national pattern of the oppressor.

In 1948, the United Nations wrote a definition for genocide,
which was a new word at the time. It was defined as the attempt to destroy “a
national, ethnic or religious group” through any of the following acts;

Killing members of the group

Causing serious bodily or mental harm to members
of the team

Creating conditions that will cause the group’s
destruction, i.e. starvation

Preventing births within the group

Separating children from parents in the group

To avoid any future similar instances of horrific,
state-sponsored mass murder, the United Nations (UN) outlined the convention on
the prevention and punishment of the crime of genocide. The UN General Assembly
adopted the agreement on 9th December 1948, thus binding all member
nations to honour the new international law and punish its violation by private
entities, public officials or national leaders, Bergin, S., 2008.   

Main body

According to Balint, J., (2011), in her book; “Genocide, State Crime and the Law: In the
Name of the

State”, she
argued that genocide is a form of state crime. What differentiates genocide from other types of mass harm committed
by the state is its motive of the preconceived destruction of a group. As the
United Nations noted in its General Assembly resolution passed on 11 December
1946, which introduced the proposition for a convention on genocide and
affirmed that genocide is a crime under international law. It stated that
it is the denial of the right of existence of an entire human group, as
homicide is the denial of the right to life of an individual human being.


Genocide can be observed as a form
of war, a war that is fought against the state’s citizens, resulting in their
ultimate marginalisation. It is often portrayed this way by the state; an
example is how Hitler was fighting two wars simultaneously, the conventional
war of conquest for Lebensraum to
establish the thousand-year Reich and the ideological battle of murder against
the Jews. This scenario highlights that; both genocide and war can be seen as
integrally connected, (Ibid).

It was further emphasised that many levels of obliteration
could be found in states; however, not all are on a continuum towards genocide,
nor do all contribute to the act of genocide. The spectrum within which
genocide can be concerning is a truncated range, one in which there are
connections as well as momentous exoduses.

The investigation that genocide is an act of state, and of
state making, is a method which emphases on how genocide is committed. It is
regarded as a fragment of state policy, whereby political elites of the
executive of the state harness institutions of the state to perpetrate these
acts; this includes the police, the army, the legal
system, non-state organisations such as the church and businesses that may
collaborate. State crime both acts
perpetrated by the state that results in the oppression and subjugation of
groups. The group is defined by the state. The institutions of the
country are then utilised to fulfil a vision of a “better state” by those who
seize or hold control. This serves as a recognition of the state as the chief
instigator, (Ibid).  

Balint, J., (2011), further argued that there are three
differentiated types of state crimes that include genocide and mass harm
perpetrated by the state. The three forms of state crimes against humanity are;

State destruction of a group

State systematic killings

State systematic subjugation

This classification authorises distinction in state crime
within a structure that emphasises the institutional and state-directed
characters of this type of crime. It is imperative to state categorically that,
these are all acts which are found in the current international law as a crime
and as acts of ‘crime against humanity’ defined in international law. These
forms are all organised and state-arranged activity aimed at specific groups to
effect in the annihilation or subjugation.

The ‘non-Khmers’ of Pol Pots
Democratic Kampuchea as defined by the Khmer Rouge are a group, as are the Jews
of Europe as per the Nazi State. These methodical acts of human rights
violations, which caused destruction and subjugation includes actions; defined
within international law as “crime against humanity,” i.e.
persecution of a group, apartheid, to mention but a few.   

The state crime of systematic
killings in Ethiopia under Mengistu and the Dergue, and the broader massacres
in the former Yugoslavia. These are routine killings perpetrated by the state,
which can be considered as state crimes against humanity, and hence falls under
the international law of genocide. Apartheid regime in South Africa can be
placed as a state crime of systematic subjugation.

However, it is not only the
irrevocability of the state killing that gives the subject of genocide its
peculiar and astonishing dimension; it is the meaning of this irrevocability.
It is the intent of irreversibly remove, to destroy a group, as in the case of
Armenians, the Jews, the Bosnian Muslims or the Tutsi. This makes it genocide,
state destruction of an organisation. It is argued that genocide by the state
intends to remove a group, perceived as a threat. The intent of mass killing by
a state is generally to induce terror among a population and to the institution
a system of control. It may include the destruction of particular groups within
that community, but unless this is for their intentional murder as such, the
acts are not genocide. These actions can also have elements of genocide.

Nazi Germany

Genocide is the ultimate state crime, especially looking at
Nazi Germany and how Hitler began his genocide through the direct utilisation
of the law. The Enabling Act gave the government the power to enact legislation
on its own. This resulted in Hitler declaring the unity of the Nazi party and
the German state, and embraced by Hitler as an efficient tool in the
implementation of his policies, starting with the eviction of Jewish judges,
with other civil servants from office in 1933. It did not end there but moved on
to Nuremberg Laws that separated Jews from non-Jews in Nazi Germany, abolishing
their rights and citizenship. It was further reiterated in a speech in
Reichstag in September 1935 that, Nuremberg Laws are an attempt to regulate by
Law the Jewish problem, (Ibid).

Hitler went on to say that, if this attempt fails, the Jews
must be handed over by law to the National-Socialist Party for a ‘final
solution’. It was at the 1942 meeting in Berlin known as the Wannsee
Conference, where the ‘final solution’ was discussed, it meant that concerning
the policy of increased emigration, the aim is to cleanse the German living
space of Jews legally, in other words, to kill Jews.

Despite the appearance of normalcy of the rule of law; the
Nazis then proceeded to use a code in its unadorned and most abusive form, as a
direct addendum of political will. Progressively more oppressive and
segregationist laws were introduced, new courts were established, while powers
of the existing courts were reduced. The Nazi party in using the code so
prominently, it managed to build an initial, and essentially enduring
legitimacy, one necessary for their acceptance both internal and external,

What is prominent in the Nazi Germany genocide was how the
law played a legitimating role, specifically tailored to the position of law in
that state. The state orchestrated this through the usage of the law, same as
how the code was used to establish a new reality in Khmer Rouge Cambodia. In
both countries, the law played a legitimate role, mainly to suit the situation
of law in these countries. The bill was used in the perpetration of these state
killing, and it did allow liberality of this state crime.

This happens in other countries too, where the law act as a
shield, enabling the perpetuation of state harm, and structure, providing
conditions for state crimes.

The use of the law can be identified
in many regimes that commit a crime. This span from a robust application of the
law to feeble or an original purpose of the law. Within this range are many
examples of legal systems that have been destroyed, new ones implemented, legal
systems that have been drastically changed and legal systems that do not
improve. Nazi Germany neither recognised or conceded the rule of law. Balint,
J., (2011), further stressed that the Nazi state was a criminal state, and not
merely a state that committed crimes. It heavily depended on the legal system
to aid them in the execution of its ‘crimes against humanity’, and it acts of
genocide against the Jews. When the legal system of a country is altered to
obliterate the rule of law and separation of powers, with the intent to impose
the rule of the executive directly, that is a criminal state.

South Africa, according to the
national truth commission inquiry into the role of the legal profession in
apartheid found that part of the reason for the durability of apartheid was the
external support to the ‘rule of law’ by the governing National Party. Whose
leaders were strongly portraying the legality that ‘the law’ conferred on their
harsh injustice, (Ibid).

In South Africa, unlike Nazi
Germany, the rule of law continued to exist, at least in a speculative somewhat
than any substantial sense. This accompanied with apartheid legislation
introduced ‘on top’ of the existing legal system. Even though the extent of
such criminal legislation corrupted the rule of law, the independence of the
judges was questioned, whiles the reconciliation commission of South Africa
final report argued in its findings that, the courts and the legal profession
conspired in the legislation and the executive pursuit of injustice. South
Africa maintained a ‘weak’ rule of law, which is still different to Nazi
Germany where the rule of law was destroyed. This difference contributed to the
contrast in attitude towards the legal system by the Germans and the South
Africans, (Ibid).

A.J., 2014, in his book, titled; The
Holocaust, the Church, and the Law of Unintended Consequences, he
emphasised that the Nuremberg Laws of 1935 demonstrated Nazi preoccupation with
racial purity. The Jews were described as racially impure, marriage between
Jews and non-Jews violated the Aryan race and hence was forbidden. Judges
through the Nuremberg law argued that Jews were no longer measured as full
human beings and did not qualify for human rights. The Jews and other targeted
minorities went through civil death before millions of them met their physical death at the
concentration camps.  Nazi lawmakers
started arresting thousands of so-called enemies of the Reich and tried them in
Hitler’s court in 1939. The destruction of or killing of a group would not have
been possible had it not been the violation of the law and the enactment of the
Nuremberg Laws. This further substantiates that, genocide is a state crime
carried out by governmental institutions, in this case, made possible by the
legal system. The law was against anyone who spoke against the Nazi injustice;
Dr Johan Von Donyanyi who was thirty-six, the youngest member of the German
supreme court, was arrested and executed for speaking out against crime.