Ignorance, Law, Genocide: Is There an Excuse?

Peter d'Errico

There's an old saying, "Ignorance of the law is no excuse." It means the law applies whether or not you know the law exists. It's based on the idea that you have an obligation to know the law, and assumes that the law makes itself known.

But how does the law make itself known? We might say through books and official notices, which we are expected to read. But there's a difference between the law in the books and the law that is applied. We know the law that is applied from the cases where law manifests in a judgment. The cases become precedents—signposts to mark out the contours of what is legal from what is illegal.

Some years ago, sociologist Kai Erikson explored how the law makes itself known through cases. His 1966 book, Wayward Puritans, became a classic study of Puritan society in colonial New England; but his conclusions extended to all societies, all systems of conflict resolution. He said legal decision makers pick out cases that will mark the boundaries of what they consider acceptable (legal) behavior.

In earlier years, law professor Karl Llewellyn and anthropologist E. Adamson Hoebel proposed a similar understanding, based on a study of Cheyenne society. Their 1941 book, The Cheyenne Way, concluded that whatever form law takes, it always focuses on "trouble cases." The ways the Cheyenne resolve trouble is their law.

So the way we know the law is by watching decision-makers dealing with problems, starting with what they choose to call a problem. What do they do, for example, when a killing happens? Do they charge someone with murder or do they ignore it? Perhaps they actually promote the killing, or make excuses for it.

All of this discussion is a way to set the stage for a look at two recent events: an April 18 decision of the Guatemalan High Risk Court and an April 26 statement by a former prime minister of Canada. Each event tells us something about the law.

In Guatemala, the High Risk Court concluded a trial of former military dictator José Efrain Ríos Montt. The court convicted him of genocide and crimes against humanity for his actions against the Mayan Ixil population during Guatemala’s Civil War. It sentenced him to 80 years in prison.

The Guatemalan case is especially notable because it is the first time a former head of state has been tried for genocide by the state's own judicial system. This is a very high signpost about the boundaries of the law, notwithstanding the fact that there is an appeal process that will allow Montt to challenge the conviction. Criticism of the decision by current Guatemalan President Otto Perez Molina, who said that there was no genocide during the civil war, only adds to the status of the case as a boundary-marker, because Molina also said the government will respect the outcome of the legal system.

In Canada, former prime minister Paul Martin spoke before the federal Truth And Reconciliation Commission, saying, "Let us understand that what happened at the residential schools was the use of education for cultural genocide." He added, “I talked to a number of people here, to a number of members of Parliament and the question we asked ourselves was ‘how come we didn’t know.’ What made it so we didn’t know? I still can’t answer that.”

Part of the answer to Martin's question—the reason for his ignorance about the genocide—was evident in the fact that until ordered by a court the government had refused to turn over official archives of the residential school system to the Commission. When officials hide decisions, we cannot really know what the law is. In a sense, there is no law in such situations.

These events have implications for the United States. CNN reports that the Central Intelligence Agency assisted the Guatemalan military for years during the civil war, despite knowing of the atrocities being committed against the Ixil Mayans. The current State Department noted only that a "strong and transparent justice system [is] an essential component of democracy." There was no comment about U.S. support for Montt under the Reagan administration.

For reasons that remain to be explored, the U.S. Indian residential school system has not been subjected to the same intense scrutiny as the Canadian, though it operated, like the Canadian, on a policy of "civilizing" the Indians, with similar consequences. How many of us still "don't know"?

In the absence of visible legal decision-making, we may never know the contours of U.S. law about genocide, by the CIA or the federal Indian law system. We will be left to speculate about what U.S. law really is. We will have to imagine the invisible signposts. We will guess about what the law permits only by knowing what it does not prohibit.

Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues.

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Anonymous's picture
I beg to differ. The contours of modern genocide is clear, but only applied to mainly one group, the jewish people. While it is said, they lost about six million, its estimated that nineteen million native americans were lost in america. It is also said, that Hitler modeled his campaign against the jewish people after the american model used against the native americans, even marveled at it. Yet, what happened to the jewish people is clearly called "genocide" and not clearly called the same in regards to native americans here in america. The contours of genocide have been well established by now, its just on a moral and mainly political front that holds it back.
curtj's picture
European countries, and America is owned and operated by and for the benefit of the multi national neo conservative conglomerates who make their profits off stolen resources and lands, at the expense of oppressed and subjugated Indignous people worldwide. Their policy is called COLONIALISM and it is nothing but theft and murder. America spends trillions of dollars internationally and domestically carrying out those policies of invading other countries or manipulating assassinations and coups to destabilize governments in order to set up and prop up despot 2 bit dictator regimes who are bribed to subjugate their people with intimidation, kidnappings, rape and murder, to enable the foreign multi national conglomerates to steal their resources and lands. We have 750-900 bases in 125-235 countries, depending on if RonPaul or Jesse Ventura is talking, manned by the neo con owned CIA, military intelligence or mercenaries. We spend trillions to enable million and billion dollar profits for a select few like Cheney, Bush, Halliburton, KBR, Shell, BP or Exxon and their bribed political prostitutes like Boehner, Pelosi, Feinstein and Cantor, as well as Scalia and Thomas. In return we get the trillion dollar bill and the resulting terrorist attacks by people incensed at seeing their people murdered in order for foreigners to steal their resources. It's called Colonialism and as the descendants of the illegal European immigrants refuse to admit the policies of colonialism are nothing but theft and murder and results in terrorism. To do so they'll be forced to admit to the world that our government is guilty of theft and murder and together with their neo con masters, are guilty of theft and murder and are ultimately responsible for the murder of 3,000 Americans on 9/11.
indianmedicine's picture
Professor, as you can see by the Comments - Lay People read and comprehend "Law" differently then a Trained Jurist Doctor; because it is common US Practice to embrace Majority & Minority Opinion to obtain a Moderate Law Statute; then that "law" can by chance be eroded by "Case Decision's" contrary to the Original Intent of the Statute....................................................................................................................... We also are aware that "Day to Day Word Definitions, may be CONTRARY to the "legal definition & practice and use of a word"............................................................... By established and on-going Public Policy held and practiced for a time - OR "Word Play".(What is the definition of "is" - Remember that one, circa Clinton Administration?) The "string of words" will result in a definition completely opposite of what we think we said and meant.................................................................................. I find your "Treatise on the Nature of Law" and its "dynamics" to be on point - that to most - "Law" is intentionally made confusing to "Lay People" by "Word Play" with the end result being a 180 of what most Citizens would deduct by "Word Usage". (Look at "Old Treaties" made with the Tribes using "White Anglo Saxon Vocabulary" embracing Rights, Privileges, and Duties of Both Parties contrary to NAI Definitions & Understandings.) equal "Word Play" to the point of Fraud. ......................................................................................................................................... So, the "Law Is Not Clear" in most Tribal Understandings, because of "Word Play";and The Court must make "The Law" Clear, Convincing, and Understood to All Parties - even if there is "No Law on the Subject"..................................................
Anonymous's picture
life flow or l - a - w is paper or toilet
curtj's picture
It may be the Nazi's murdered up to 6 million jews prior to and during WW2. It is known as a holocaust and rightfully so. After WW2, the British tried to drop off a shipload of refugees but were rebuffed by every country, including the U.S.A. and Britain itself. So they dropped them off in the middle of Palestinian lands and immediately Britain and America declared them a state. As colonial powers they see nothing wrong with invading weaker countries and stealing either their resources or lands for colonization. So now with the "white" European and American governments supporting them militarily and politically , by either supplying them with weapons and munitions, or by running interference for them in the political theater, like the United Nations. Meanwhile the jews are busy colonizing stolen Palestinian lands, while they have the Palestinians locked up behind barbed wire, i n concentration camps, as the Palestinians watch the Israelis colonize their stolen lands Heartily backed by America and the Europeans. As descendants of the illegal European immigrants, most white Americans support our policies of colonialism by us, or by the Europeans, in invading and manipulating the destabilization of other governments, to enable multi national neo conservative owned conglomerates to steal their resources and lands. Our governments set up, prop up and financially and militarily support depot 2 bit murderous dictators, bribed to subjugate their people while the multi national conglomerates go in and steal their resources, with only them and their propped up dicatators profitting. We spend trillions with this policy and the neo cons profit as well as their bought off Washington political prostitutes, in millions and billions. They get the profits and we get the trillion dollar bill and resulting terrorist attacks. Treason actually.