Genocide

The Act as Idea

Berel Lang, George J. Andreopoulos

• Publisher: University of Pennsylvania Press
• Year: 2016
• ISBN:
  9780812293647
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

The term "genocide"—"group killing"—which first appeared in Raphael Lemkin's 1944 book, Axis Rule in Occupied Europe, had by 1948 established itself in international law through the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. Since then the charge of genocide has been both widely applied but also contested. In Genocide: The Act as Idea, Berel Lang examines and illuminates the concept of genocide, at once articulating difficulties in its definition and proposing solutions to them. In his analysis, Lang explores the relation of genocide to group identity, individual and corporate moral responsibility, the concept of individual and group intentions, and the concept of evil more generally.The idea of genocide, Lang argues, represents a notable advance in the history of political and ethical thought which proposed alternatives to it, like "crimes against humanity, " fail to take into account.

Part I

Between Genocide and “Genocide”

Chapter 1

The Evil in Genocide

A title I chose not to use for this opening chapter would have been blunter: “What’s So Bad about Genocide, Anyway?” That flippant wording asks more forthrightly the question considered here of precisely what is distinctive—so bad or wrong—in the act of genocide. The answer to this is often regarded as self-evident, but it is demonstrably far from that, with the definition of “genocide” often disputed and its alleged referent at times even denied. Furthermore, the assumption that the evil in genocide is obvious has led to both over- and misuse of the term and to distortions in identifying its referent. The question of the evil in genocide—what is so bad about it—is the subject here, with my premise that genocide is indeed an evil, distinctive in its working, and among the wrongs humanly imagined and perpetrated as wrongful as any other has been shown to be. Nobody is likely to find this assessment surprising or contentious: it would be difficult to name an act or event commonly regarded as more heinous. Genocide, once it was named and described, has come to occupy a place among the most serious offenses in humanity’s lengthy—undoubtedly still growing—list of moral and legal violations. But the precise nature of the wrong that “genocide” designates is often ignored or blurred (if only because it is often taken for granted) or, more seriously, misunderstood.

This view of a combination of acceptance and misunderstanding of the significance of the crime of genocide is supported by two readily accessible items of evidence. First, the charge of genocide has become a metaphor for atrocities in general, some of which, on inspection, are clearly not genocide. Poverty, avertable disease, and slavery (for example) have variously been labeled “genocide” or “genocidal,” and although these have indeed at times been instruments of genocide, claims of an intrinsic connection between such phenomena and genocide, terrible as each is, are dubious. Human history includes many reprehensible acts and events, but relatively few have been genocidal. Nonetheless, “genocide” as a virtual synonym for atrocity has become the equivalent of a curse, and however strained or misleading this usage may be, its figurative expansion reflects a basis in the term’s literal meaning. Figurative expression, after all, is anchored in the world as it is, in literal meaning—and the moral charge attached to “genocide,” the murder of a group as a group, provides an immediate source for moral outrage given the universal significance and constancy of group-identity.

The second piece of evidence for the extreme character of genocide stems from the history of the word itself—the fact that a new term had to be coined (recently, in historical terms: 1944) in order to name the crime it denoted, implying also that a new concept had to be thought, one that reflected either new circumstances or old circumstances newly pushed to an extreme (arguably an expanding moral consciousness or imagination applied to the phenomenon of evil). To be sure, this recent conceptual development does not mean that genocide had not occurred previously. There has indeed been disagreement on its historical appearances, ranging from claims on one side that the Holocaust, the Nazi genocide against the Jews, was unique, a novum, in its genocidal character to claims on the other side (in the majority) that earlier occurrences of genocide, from biblical and classical times forward, had all the requisite features of genocide, however distinctive the scale of the Holocaust would later be.

But there is no disagreement about the novelty of the term “genocide” or (by implication) of the concept underlying it. These were shaped largely by the efforts of a single person, the Polish Jewish jurist Raphael Lemkin who, after a number of other attempts in the 1930s at formulating and naming the concept and having it entered into international law, introduced the term essentially as it has now come to be acknowledged in his 1944 book, Axis Rule in Occupied Europe. During this period, Lemkin was working his way toward a definition of the new term as a needed legal and moral advance, since in his view no other term or phrase in the legal or moral vocabulary adequately expressed its meaning: not “murder,” not “mass murder,” not even the catchall but vaguer “crime against humanity.” Genocide, the phenomenon of group-murder (joining the Greek and Latin roots “genos” and “cide”), was in his view distinct from all of these, distinct as an act and distinct in its moral character, its evil—the latter both for the wrong specific to its occurrences and (as I attempt to show) for its enlargement on the concept of evil as such.

First, then, to the specific evil of genocide. To represent this connection requires retracing certain steps in the history of “genocide,” with a focus on the gap it was meant to fill. Legal and moral thinking, like nature in its classical formula, at once abhors a vacuum and does nothing in vain. When a new concept appears among the layers of wrongdoing, then it is reasonable to assume that it would gain traction only if it fills an absence among extant legal and moral categories. And just such a lack stood behind the formulation of the concept of genocide as a distinctive crime, which Lemkin set out to identify, beginning with his initial effort in the context of an international congress in Madrid in 1933 (where the written document he submitted—he was forbidden by his superiors in Warsaw to attend—spoke not of “genocide” but of “barbarity” [physical destruction] and “vandalism” [cultural destruction]), moving then to fuller articulation in his 1944 book, written by him with enough of the Nazi atrocities already in plain view to intensify the need for understanding. The concept of genocide that emerged from this process was subsequently put to use in the planning for the Nuremberg trials (through the International Military Tribunal) of 1945 and the many trials following them, in both Germany and the countries it had occupied or attacked; it was a tacit factor in many of these, although “genocide” rarely appeared in them as a formal prosecutorial charge. This early phase of the new concept’s history advanced dramatically soon afterward in the newly founded United Nations, first in a General Assembly resolution in 1946 and then in the 1948 Convention on the Punishment and Prevention of the Crime of Genocide. The history of the concept and its applications continues to unfold, including most notably the activation of the International Criminal Court, ratified by member countries in 2002, for prosecuting the crime of genocide which was specifically named as one of the Court’s charges together with “crimes against humanity” and “war crimes.” Other tribunals initiated earlier by the International Court of Justice under the auspices of the United Nations (e.g., the international tribunals for the former Yugoslavia and for Rwanda) have also conducted hearings on charges of genocide (among other charges). The tribunal for the former Yugoslavia, for example, handed down 161 indictments for crimes under its jurisdiction; two trials including the charge of genocide are ongoing in the cases of Ratko Mladic and Radovan Karadzik.

Raphael Lemkin’s work affected all these stages of thinking and legislation about genocide. The crime he labored to bring to the world’s attention seems now so obvious that we might suppose that there were reasons (not necessarily good ones) why it had not been identified earlier, and one such reason seems especially relevant to understanding the concept itself. Modern international law had viewed the nation-state as its basic structural unit; international crimes were, on the standard model, accepted crimes committed by one nation against another or others. The implications of this restriction were straightforward: no country had a recognizable “interest” in another country’s treatment of its citizens or of minorities, whether citizens or not, within its own boundaries; so far as concerned that country’s individual inhabitants, the obligations even of nations at war were primarily to other nations, with little thought for the enemy nation’s noncitizens and none at all for groups unprotected by citizenship. To be sure, international conventions had been adopted for protecting prisoners of war and “civilian populations” in territories at risk or conquered during wartime (as in the Geneva Conventions, first formulated in 1864 and then revised and expanded in 1929, 1949, and 1977). Omitted from that protection, however—as became evident on a broader scale in World War II than ever before—was protection for groups of people who either had been residents but were not citizens of a host country, or had been citizens of that or another country. The latter groups were then persecuted after either being disenfranchised or found to have alleged (negative) group-features judged sufficiently dangerous to override rights otherwise granted them. Such groups, Lemkin saw, were almost entirely without internal protection, since a reigning government could believe itself entitled to do as it wished to its own populace. This was the claim made by the Turks in the persecution of the Armenian minority in Turkey in 1915–17 and by the Nazis in relation to their own “legal” persecution of the German Jews that began in 1933 and were epitomized in the disenfranchisement of Jews legislated in the Nuremberg Laws of 1935: both those attacks were conducted under the cover of internal legality. Such minority groups, furthermore, were also unprotected externally from any occupying power, since the legal apparatus imposed by an occupying power could override whatever protection the occupied country had previously set up; the occupying power could persecute such groups the more readily, of course, where no such legislation had held.

The concept of genocide verged in this way on a distinctive and novel domain of law, one that breached the traditional boundaries observed in both national and international law by rejecting the “hands-off” doctrine that gave nations free rein in their treatment of members of their own populace, and one that disputed the premise of international law which granted full standing almost exclusively to nations. The UN Convention on Genocide thus reinforced a conception of “metanational” law that would protect groups aside from (and sometimes against) the political authority that had formal jurisdiction over them; it extended that protection, furthermore, in peacetime as well as during war. The lengthy theological and philosophical tradition of natural law and natural rights that antedated this development—articulated by such figures as Grotius and John Locke and in such Enlightenment political applications as the US Declaration of Independence (1776) and the French Declaration of the Rights of Man and Citizen (1789)—had been foundational in political and legal thought. But with the rise of modern nationalism, that tradition was seen as also supporting the dualism between intranational and international law, leaving groups that were other or less than full members of nations to fend for themselves. The classic political texts did indeed speak of “natural” and “unalienable”—that is, inherent—rights as more fundamental than any granted by national affiliation or citizenship, asserting that every person, apart from the specific character of national citizenship, possessed such rights which could then have been extended to associations or groups of citizens within the body politic. In practice, however, those rights, relevant as they were as a rationale for the American and French revolutions, gave way in practice to a less generous model that associated them with the national citizenship of individuals, in effect abandoning groups of citizens qua groups to the space between individual and nation, a space that at the time remained undefended. The “natural” rights asserted were at any rate inherent for individuals as individuals, with group associations relevant to that individuality left to fend for themselves, at least so far as the claim of rights was concerned.

It was the members of such groups and the group-formations themselves, unprotected by the law even in otherwise enlightened societies, that Lemkin saw as requiring defense against what he observed historically and then currently as the reality of genocide—the murder or destruction of a group qua group, and by implication then, its members. The act of genocide thus rests equally on the two parts of the term “genocide” itself: “genos” (group), and “cide” (murder). The first of these parts raises more complex conceptual issues than the second (what, after all, is a group?), but much needed to be said about the latter as well. Lemkin himself, and then the UN Convention, found, for example, that the destruction of a group did not require that its members be physically killed. A group could be destroyed by murder, of course, and this remains the term’s most definitive application, with the Nazi genocide against the Jews remaining a paradigm of this. (There could hardly be a more precise expression of genocidal intent than Heinrich Himmler’s words to the SS in his Poznan speech of 1943, describing the Nazis’ purpose “to make this people [the Jews] disappear from the earth.”) But other means would also have the effect of destroying groups of people, and although less immediately cruel, their consequences for group-existence are equally destructive. Thus the UN Convention includes four additional means of genocide: the forcible transfer of children to another group, imposing measures to prevent births within a group, inflicting conditions of life on a group calculated to bring about its destruction, and causing “serious bodily or mental harm” to the members of the group. (In its verdict of September 2, 1998, the UN Tribunal for Rwanda identified under the third of these categories the systematic rape of Tutsi women by the Hutu as a genocidal act, although one could interpret the tribunal’s judgment as viewing systematic rape as an independent modality.) These additional means differ in the immediate physical suffering they cause, but it is clear that any of them pursued systematically would conduce to the destruction of the victim-group. And it is clearly this, the demise of the group, the death not only of actual or potential future individual members of the group but of the group as such, that distinguishes the crime of genocide condemned by the UN Convention.

In addition to such differences among possible means of genocide—suggesting the possibility, which it does not itself propose, of also marking “degrees” of genocide—the Convention leaves open or vague its stipulation about the victim of genocidal attack as being a group “in whole or in part.” That “in part” phrase has been seized on by critics of the Convention who claim that it implies that the murder of even a single person (who may after all be “part” of a group) would qualify because the person’s group-identity, if cited as a cause, would qualify the murder as genocidal. (The phrase’s inclusion in the Convention was intended at the time of its adoption to anticipate the murder of the leadership “part” of a given group, the effect of which would be to weaken, perhaps fatally, the prospects for group-survival, but that rationale does not solve the problem of ambiguity in the wording.) The need for greater precision in the Convention’s wording in this and other instances (this is discussed further in chapters 3 and 4) has been acknowledged by its advocates as well as its critics. Indeed, adjustments of this sort have continually been associated with the Convention through the weight of precedents emerging from actual genocide trials.

Despite the need for such further specification, the crucial principle at the heart of the Convention remains clear and unambiguous: genocide entails the intended destruction of a group, differing in this from the destruction both of individuals and of murder on a large scale—mass murder—where that act is directed at individuals as individuals rather than as members of a collective. Genocide is in this sense not a function of numbers; mass murder that is not genocidal may claim larger numbers of victims than acts of genocide. What is distinctive about the murder in genocide is not the killing of individuals, but murder of the group with the fate of individuals secondary to that intention and its means. As Himmler’s statement made explicit, it was against the group of Jews as such that the act of Nazi genocide was directed, if not initially, then ultimately, in what emerged as the “Final Solution of the Jewish Question.” Obviously the surest way to destroy a group is by the physical destruction of its individual members, but in genocide that destruction is “only” the means to the supervening end of group-destruction.

We find here, then, the distinctive aspect of the evil in genocide: that although it may involve (and has involved) twofold murder, killing at two levels (the murder of individuals as a means to the second “murder” of the group of which the individuals are members), the second level is what distinguishes genocide from individual murder, on the one hand, and from mass murder, on the other. The murder committed in this fashion is directed against two different “beings”: individuals, yes, but also, and distinctively, the group of which the individuals are members and from which they draw their identities.

One objection to this formulation may quickly come to mind and has indeed been repeatedly argued. Are not groups only the assembly of a number (an indefinite one, at that) of individuals? How can groups be substantively distinguished from the individuals who constitute them? More will be said about this matter in the following chapters, but a preliminary response draws on the everyday role of groups commonly assumed. Groups—at least, some of them—are not simply individuals added to one other or occupying a particular space. Characteristically, it might be claimed necessarily, members of at least some groups occupy a space more complex than and different in status and consequence from the individuals distinguishable within it or even as they might be individually added to each other. In addition to the integrity of their persons, they are part of a corporate or collective “self” closely linked structurally and causally to their individual actions and achievements; their capacities and even inclinations within this collective would be foreign if not impossible for solitary individuals and even for individuals randomly joined. We have only to consider as a rudimentary example of the force of this linkage the “institution” of language, the ability to communicate verbally, as it displays the role—and needs—of a social self. To be sure, groups do not have the physical “vital signs” of individual beings, but they constitute lives and histories that infuse and shape the lives and histories of their individual members. And they can also, as the phenomenon of genocide makes clear, suffer death. (The analogy to the threatened deaths of biological species is relevant here—extending also negatively in the sense that political movements in defense of animal species threatened with extinction have rarely been impeded by the question of justification, even as concerns the character of the particular species being protected. Thus, in contrast to the US Senate’s forty-year debate before ratifying the UN Genocide Convention, the Senate confirmed the Endangered Species Act of 1977 without dissent and on its first presentation.)

A recurrent issue in the same connection questions also which groups are subject to or “eligible for” genocide, since the definition of what counts as a “group” in relation to genocide is itself open. In principle, the number of members required for a group might vary from one to any larger number (Thoreau insisted that any individual person could still be a “majority”). Membership in a group, furthermore, could be based on a variety of indicators, natural or constructed—from eye color or occupation or nationality to the first letter of last names. The UN Convention, however, named only four groups as liable to genocide, based on their special significance in social and cultural life—a restriction that does not mean that the...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• The United Nations Convention on the Prevention and Punishment of the Crime of Genocide
• Part I. Between Genocide and “Genocide”
• Part II. Genocide as Past and Presence
• AfterWords
• Bibliographical Notes
• Index