Rethinking the Harm of Genocide

Rethinking the Harm of Genocide
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    1 Rethinking the Harm of Genocide Hannah Arendt notes that the success of the Eichmann trial was that it ‘refused to let the basic character of the crime be swallowed up in a flood of atrocities’  (Arendt, 2006, p. 275). During the Nazi genocide, that is to say, there were a high number of individual murders, violations of human dignity and heinous acts. But there was also some  further evil committed, over and above these individual crimes committed on individual people.   Political philosophers have, of late, shown interest in attempting to capture this peculiar evil of genocide (Card, 2003; Lee, 2010; May, 2010). I do not wish to take issue with any of these interpretations directly. Rather, in this article I will suggest that there remains a conception of genocide that has been undeservedly neglected. In the literature, there exists general consensus that genocide’s distinctive harm should be characterised either in terms of damage to individuals or damage to groups targeted by genocide . I wish to suggest, however, that we should give attention to the claim that genocide’s special status derives from damage done to humankind itself  . Although this account has been neglected by theorists, it has a venerable legal history, and given that the term is a primarily legal one, it deserves our attention. Moreover, characterising the crime in this way offers significant political benefits. I begin, in Section 1, by showing that this account has a number of proponents within law. In Section 2, I show that this understanding of the crime is profitable in terms of explanation: it can show why there are legal obligations concerning prevention that exist for few other crimes, and why the crime is subject to universal jurisdiction. 1.   Genocide as damaging humankind  The consensus that genocide must be characterised as either damage to individuals or damage to groups targeted by genocide is nowhere better exemplified than in a recent article by Steven P. Lee. In ‘The Moral Distinctiveness of Genocide’, he asks the following question:   ‘What  or who is the chief object of harm when genocide is committed, individuals or the groups to which they belong? Is genocide distinguished by harm to the group itself, with the harm done to its members only a means to the harm to the group (as with collectivist accounts), or is genocide    2 distinguished by the harm done to its individual victims?’  (Lee, 2010, pp. 338  –  339, emphasis in srcinal)   But the disjunction he presents is surely not exhaustive. There is at least one additional possible object of harm: humanity itself. Under this conception of genocide, the morally distinctive occurrence primarily concerns its relation to the broader group of humankind. Arendt suggests this way of characterising genocide when she describes the Holocaust as ‘a crime against humanity, perpetrated upon the body of the Jewish  people’  (Arendt, 2006, pp. 7, 269).   Lee presents his typology by way of a table dividing potential interpretations between the individual/collectivist and the actus reus  /  mens rea distinctions. By actus reus is meant that act and circumstance which occurs in the world: the harm done. By mens rea is meant that state of mind which characterises the guilt, whether intention, recklessness or negligence: the mental element. To ascribe guilt for any crime, both mens rea and actus reus elements must be present  –   genocide is no different in this regard  –   though either element, as Lee notes, might be brought to the surface in attempting to explicate its  peculiar wrong. Lee’s table might be augmented to include the humankind reading, then, as shown in Table 1.   Two additional interpretations are thereby generated. The mens rea humankind reading, it seems, is implausible. There has never, so far as I am aware, been expressed in acts of genocide the active intention to harm humanity. (Indeed, where any explicit intention towards humankind is conceptualised, it is usually in the false claim  –   whether made for rhetorical purposes, or made genuinely, under the guise of total ideological blindness  –   that humankind will benefit from the destruction of one of its constituent groups.) 1 Given that it is hard to imagine the intention to harm humankind playing a motivating role, this interpretation does not seem helpful in    3 understanding genocide.   An actus reus humankind account offers more hope. We might think that when a national, ethnic, racial or religious group is damaged or destroyed by genocide, humankind at large suffers. This thought will of course need to be made more philosophically precise if it is to serve as the foundation of a theory of genocide  –   I merely wish to suggest that it warrants more attention than it has been given. This view of genocide has a significant legal history. In particular, the crime has often been characterised in law as harming humanity by way of robbing it of a contributing culture . When the crime of genocide occurs, a culture loses the ability to interact: in extreme cases, because the group is destroyed in total; in other cases, because it is crippled beyond the possibility of sustaining its own cultural life. This understanding was srcinally codified into a 1946 United Nations Resolution that was the precursor of the Genocide Convention:   ‘Genocide is a denial of the right of existence of entire human groups ... such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups , and is contrary to moral law and to the spirit and aims of the United  Nations’. 2 Genocide is here characterised as involving great losses not only to the group targeted, but to humanity as a whole. We also see this characterisation in the Rome Statute for the International Criminal Court, the Preamble to which states that the  parties are ‘[c]onscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may  be shattered at any time’, before going on to list genocide as the first crime over which the ICC has jurisdiction .3  It is as much humanity’s delicate mosaic as the groups themselves that is the focus.   This discourse of damage to humanity via the loss of cultural contributions has been central within law. Indeed, it has also been shown that the legal genealogy of genocide is intimately connected to the motivation to ensure the ‘continuing contribution of each group to the cultural heritage of all humanity’ (Vrdoljak,  2011,   p. 17). Prosecution for genocide has been tied to the need to restore cultural property to its home nation, in order to ensure that the nation’s  distinctive cultural contribution to humanity can recommence. Indeed, ‘humankind’  readings of genocide have been used in  judgments and have thereby entered into case law. Consider the unambiguous statement in Krstic´  :      4 ‘Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide. This is a crime against all of humankind, its harm being felt not only by the group targeted for destruction, but by all of humanity’ ( Prosecutor v. Krstic´  , 2004, para. 36).   Raphaël Lemkin, who coined the term ‘genocide’ and was instrumental in the establishment of genocide as a crime under international law, viewed the crime as damaging to humanity in just this way. Destruction of culture  –   the ‘contribution of any particular collectivity to world culture as a whole, [which] forms the wealth of all of humanity’ –   was integral to his conception of genocide. Again, it was the evil of robbing humanity of a contributing culture that distinguished genocide from ‘mere’  mass murder: ‘mass  murder does not convey the specific losses to civilization in the form of the cultural contribution which can be made only by groups of people united through national, racial or cultural characteristics’ (Lemkin, 1933). The distinctive evil is one that affects us all: ‘the destruction of a nation, therefore, results in the loss of its future contribution to the world’ (Lemkin, 1947, p. 147). This view has implicitly shaped all legal applications of the term .4  It has also been cited explicitly in rulings such as the judgment in Stakic´  :   ‘Indeed, Raphaël Lemkin explained that genocide constitutes such a serious offence in part because the world loses “future contributions” that would be “based upon [the destroyed group’s] genuine traditions, genuine culture, and ... well- developed national psychology”’ ( Prosecutor v. Stakic´  , 2006, para. 21).   This is of course only one among many possible ways of thinking that damage could be done to humankind: only one among many possible actus reus humankind interpretations of the crime. But it is, I hope, a plausible enough one to be taken seriously: in so far as cultural diversity in the international community is considered a good for humankind, its reduction should be characterised as damage to humankind.   Establishing that cultural diversity is a good for humankind is, of course, no easy task. It would be contentious to assert that cultural diversity is a good in itself  , but it is perhaps less controversial to claim that it is a means to the overall prosperity of humankind as a species. Cultural diversity in the international community provides a means for progress: it enables individuals to gain critical distance on their own values, and see them not as timeless and necessary ideals, but as one among many, open to ongoing assessment. When a national, ethnic, racial or religious group is crippled, this has the consequence of reducing its ability for dialectical and dialogical interaction: the chance for meaningful self-evaluation of cultures, values and beliefs is    5 diminished, and our collective progress as a species is impeded. 5 Of course, damage to humanity is not the only damage done: acknowledging this extra harm is not to downplay the catalogue of individual murders, rapes and persecutions that also occur. But this is the damage that separates genocide and hypothetical cases of equinumerical mass murder that involve unconnected individuals. 2.   The explanatory value of account V    Larry May, in his recent work on genocide, writes that ‘[t]here is thus truth to the claim that concentration camps were as much an affront to Jews or gypsi es as to humanity as a whole’ (May, 2010, p. 72). It seems clear that May feels at least the  pull of an account of genocide that finds its moral distinctiveness in the harm done to humanity. Yet, ultimately, he rejects this account of genocide on the grounds of parsimony: it does not accord with the ‘moral minimalism’ that guides his work (May, 2005, pp. 24–  39).   Parsimony is an honourable intention: it has often been noted that an account that involves ascribing harm to groups involves predicating over groups in a way that commits one to their existence (in some sense). 6   I will here accept this result and accept that the humankind account will be subject to the same criticism: if predicating over groups is to be avoided, so too is predicating over humankind. But, of course, parsimony is not the only theoretical virtue. If it can be shown that a non-parsimonious account can render features of genocide understandable that the more parsimonious individualist account leaves mysterious, then there will be even stronger reasons to prefer that account. And, I wish to argue, there are at least two such features.   (a)   Obligation towards intervention   The first is the legal authorisation for, and indeed obligation towards, intervention in the case of genocide. The Genocide Convention notes that ‘genocide,  whether   committed in time of peace or of war, is a crime under international law which [the parties] undertake to prevent’. 7   The International Court of Justice has confirmed that this undertaking ‘is unqualified’. It is an established principle of international law that states must take steps to prevent genocide within and outside their own borders. 8   ‘The obligation of States parties is ... to employ all means reasonably available to them, so as to prevent genocide so far as possible ... responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might
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