Genocide as Part of School Curriculum

To: Dr. Paul B. Winkler, Executive Director  and Steven E. Some, Chairperson – New Jersey Commission on Holocaust Education

Dear Friends:      As I understand it, your Commission was created by the New Jersey Legislature in 1991 to prepare curriculum materials on the Holocaust for use in the state’s public schools.  In 1994, your mandate was expanded “to study and recommend curricular material on a wide range of genocides.”  Because I am a Professor of International Law with experience arguing on matters of genocide before the International Court of Justice in The Hague (the so-called World Court of the United Nations System), I have been asked by the Chairman of the Irish Famine Curriculum Committee to give you my opinion on the question whether the policies pursued by the British government from 1845 to 1850 in Ireland that resulted in the mass starvation of over one million Irish People constituted “genocide.”  My answer is in the affirmative for the reasons explained below.  This opinion is based in part on the facts set forth in The Great Irish Famine that has already been submitted to you by the Irish Famine Curriculum Committee. The United States government is a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.  This Genocide Convention is a Treaty of the United States and therefore “…the Supreme Law of the Land…” according to Article VI of the United States Constitution, the so-called Supremacy Clause.  Hence, as a State Agency, your Commission is bound to follow the terms of the Genocide Convention whenever relevant to your activities.  I respectfully submit that your Commission is obliged to pay attention to the definition of “genocide” set forth in the Genocide Convention when interpreting your 1994 statutory mandate “to study and recommend curricular material on a wide range of genocides.”  “Genocide” is a legal term with a precise definition that has been determined by the 1948 Genocide Convention.   Article II of the Genocide Convention provides as follows:   Article II  In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its                             physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

[Emphasis added.]

Clearly, during the years 1845 to 1850, the British government pursued a policy of mass starvation in Ireland with intent to destroy in substantial part the national, ethnical, and racial group commonly known as the Irish People, as such.  In addition, this British policy of mass starvation in Ireland clearly caused serious bodily and mental harm to members of the Irish People within the meaning of Genocide Convention Article II(b).  Furthermore, this British policy of mass starvation in Ireland deliberately inflicted on the Irish People conditions of life calculated to bring about their physical destruction in substantial part within the meaning of Article II(c) of the 1948 Genocide Convention.  Therefore, during the years 1845 to 1850 the British government knowingly pursued a policy of mass starvation in Ireland that constituted acts of genocide against the Irish People within the meaning of Article II(b) and Article II(c) of the 1948 Genocide Convention. Pursuant to Article V of the Genocide Convention, the Congress of the United States of America adopted what is called implementing legislation for the Genocide Convention that makes genocide a crime under U.S. Federal Criminal Law.  Basically following the terms of the Genocide Convention, this Genocide Convention Implementation Act of 1987 (found in Title 18 of the United States Code) defines the crime of “genocide” as follows:

1901. Genocide

(a)  BASIC OFFENSE.–Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such–

(1)  kills members of that group;

(2)  causes serious bodily injury to members of that  group;

(3)  causes the permanent impairment of the mental faculties of members of the group                               through drugs, torture, or similar techniques;

(4)  subjects the group to conditions of life that are intended to cause the physical                                     destruction of the group in whole or in part;

(5)  imposes measures intended to prevent births within the group; or

(6)  transfers by force children of the group to another group;   or attempts to do so, shall be                   punished as provided in subsection (b).

[Emphasis added.]

Clearly, the policy of mass starvation pursued by the British government in Ireland from 1845 to 1850 caused “serious bodily injury to members of” the Irish People and therefore constituted “genocide” as defined by 18 U.S.C.  1901(a)(2).  In addition, this British policy of mass starvation pursued in Ireland from 1845 to 1850 also subjected the Irish People “to conditions of life that [were] intended to cause the physical destruction of the group in whole or in part” and thus constituted “genocide” as defined by 18 U.S.C.  1901(a)(4).  Hence, this 1845-1850 British policy of mass starvation against the Irish People would qualify as “genocide” within the meaning of both 1901(a)(2) and ? 1901(a)(4) of Title 18 of the United States Code.  Therefore, in accordance with the legal definition of genocide found in the 1948 Genocide Convention and the 1987 Genocide Convention Implementation Act, the British policy of mass starvation pursued in Ireland from 1845 to 1850 constituted “genocide” against the Irish People.  Furthermore, in my opinion as an educator and as a practicing international lawyer who has successfully argued the matter of genocide before the International Court of Justice, the British policy of genocide by means of mass starvation pursued against the Irish People from 1845 to 1850 should certainly be included within the curriculum of any course dealing with the perpetration of “genocides” in the modern world:

e.g., against the Jewish People, against the Armenians, against Native Americans, against African Americans under slavery, etc.  All of these contemporary historical examples would clearly constitute “genocide” within the definitional provisions of the 1948 Genocide Convention and the 1987 Genocide Convention Implementation Act, and thus fall within your 1994 statutory mandate “to study and recommend curricular material on a wide range of genocides.”

If I can be of any further assistance to you in this matter, please feel free to contact me directly as indicated above.

Yours very truly,

Francis A. Boyle

Professor of International Law

cc:  James Mullin, Chairman, Irish Famine Curriculum Committee, Moorestown, NJ