The Problems of Genocide: Dirk Moses on the Language of Transgression and the Genocide Convention in Context

Ferenc Laczó: Your new book The Problems of Genocide: Permanent Security and the Language of Transgression is a study in intellectual history that explores how and why concepts are formulated and make a breakthrough. It offers trenchant critiques of the genocide concept and of the political and moral consequences of genocide being understood as “the crime of crimes.” The book suggests an alternative concept, that of permanent security, which I am sure we will get to discuss later today. You suggest this concept to rethink the problem of civilian destruction so that our reflections can become “truly global and polyvalent, a source of insight rather than blindness”, as you write in the book. 

A key interest of yours seems to be in how the greatest political evil gets named and defined, by whom, and with what consequences. Drawing on the Cambridge School in intellectual history and the history of political thought, you discuss the language of transgression which, as you show, remained relatively stable from the 16th century into the 20th. Let us perhaps begin our conversation there: what characterized the language of transgression in those roughly four hundred years, and how did this language relate to the history of European imperialism but also to that of humanitarianism?

Dirk Moses: That’s a very good place to start because chapters one and two of the book after the lengthy introduction are devoted to the language of transgression. You mentioned the Cambridge School. In coining the term the “language of transgression,” I drew on John Pocock’s notion of political languages which also informed my first book, German Intellectuals and the Nazi Past. There I argued the Federal Republic of Germany was characterized by a binary polarization of its intellectual class driven by rival languages of republicanism, integrative and redemptive. Structural analysis lends itself well to such a polarized political scene, so I also had recourse to Claude Lévi-Strauss and structural anthropology. Combined with the idea of political languages which we inhabit and use at the same time, structural anthropology provides useful tool for an intellectual history that attends to affects as well as ideas.

In the case of the language of transgression, I was struck by the recurrence of the phrase “shocking the conscience of mankind” or “shocking the conscience of humanity” in humanitarian documents. For example, the preamble to the UN General Assembly’s resolution in 1946 – two years before the Genocide Convention calling for such a convention – contains such a phrase. I found it was very common in the nineteenth century when referring to state massacres against Christians in the Ottoman Empire, the Russian suppression of various Polish uprisings, the Belgian Congo, the depredations of the East India Company, and so forth.

As a historian, I was intrigued by this language: what were its origins and how did it become the standard idiom to decry state or quasi-state excesses? Why is it that versions of it are used even today in the UN? I think I found an answer in the crystallization of a certain style of critiquing state excess – whether in massacres or in the labor exploitation, that is, slavery – by the Salamanca School of theologians who critiqued the Spanish conquest of the Americas in the sixteenth century. I found this language, above all, in the writings of Bartolomé de las Casas because Raphael Lemkin proclaimed him one of his heroes. He wrote invectives against the destruction of the Indians, as they were called, in the 1550s. For the conquistadores massacred and enslaved the indigenous people in silver mines, with massive casualties. His publications caused a scandal in the Spanish world and a major debate about the rights of conquest and of the Indians. 

This debate has been exhaustively covered in the literature, but I read Las Casas looking for “shocking”, “conscience”, and “mankind” – which I duly found and identified as constituting the keywords of a particular style of condemning atrocities that persists to this day. The first two chapters reconstruct the language of transgression from the sixteenth century to the 1930s, focusing on the European empires, because internal European critics of empire wielded this language with critical intent. 

In doing so, I am presenting 

a pre-history of Lemkin by situating him in a dense linguistic context that demonstrates how he adapted this language rather than created something entirely new, as commonly supposed. I am consciously eschewing the popular biographical approach to the origins of the genocide concept that fixates on Lemkin. 

Because such biographers conceptualize the history of a concept by writing a history of Lemkin’s invention of the concept, the story is told very much through his eyes in which he becomes the inventor genius who created his concept out of nothing. If you take an appropriately contextualist approach, however, that method is untenable. 

Although my own training was more in the history of critical theory with Martin Jay at the University of California, Berkeley, anyone studying intellectual history in the 1990s took note of the Cambridge School’s contextualist approach. But it was leavened with continental thought, like Reinhart Koselleck’s work. He pointed me to semantic stability as well as moments of rupture. I perceived great continuity in the language of transgression: how nineteenth-century liberals criticized excesses of the British Empire sounded like Las Cases almost word for word. Likewise, the criticisms in the liberal press of massacres by various imperial powers in putting down uprisings in their colonies and mandates in the 1920s and 1930s are remarkably similar as well. 

You asked about the link to empire and humanitarianism. The key issue here is that most violent excess by states occurs in their exterior empires, so colonial scandals about the violent suppressing of uprisings and labour exploitation were common. Liberals, and later socialists, were the critics here. Liberals did not oppose empire, however. They wanted a humanitarian empire just as earlier Las Casas had wanted a godly one.

The language of transgression was also wield against empires from without. Protestant liberals adopted Las Casas in formulating the “Black Legend”, as they called Spanish imperial rapacity, driven by conquest and exploitation. To it they contrasted their Protestant empires that were not engaged in conquest, but in settlement and uplift of “natives”. Of course, that’s not how it worked out in practice, but these are the imperial ideologies that scholars like Andrew Fitzmaurice and David Armitage have studied. Such discourses of empire are the discourses of legitimation and thus significant. They basically wanted to say that “we represent civilization”, whether that meant Christian civilization or otherwise. 

The late eighteenth-century and nineteenth-century humanitarian lobby – with its combination of Christian and Enlightenment themes – articulated the language of transgression. This lobby raised the issue of “conscience” against their own militaries or enterprises, like the East India Company, or in criticizing rival empires. The other empires do the same to the British. 

This is a practice I call the diplomacy of genocide: the mobilization of humanitarian claims against geopolitical rivals. That doesn’t mean that the claims are wrong. All these empires are engaging in various exploitative and violent practices. The mobilizing of these de-legitimation strategies is nonetheless a diplomatic game.

The mobilization is done to gain a moral and geopolitical advantage over one’s rivals while usually making excuses for your own empire. It’s not as if this game is driven by people who have necessarily got clean hands all the time.

To be sure, there was obviously considerable violence within Europe too but even much of that can be coded as imperial, involving conquest and foreign occupation. Consider the Dutch resistance to the Spanish Habsburgs and the execution of the Count of Egmont in 1568, immortalized in Beethoven’s composition. In short, this is what I discuss in the first two chapters of my book where I go from the 16th century to the interwar period.

Ferenc Laczo: I would like us to zoom in a bit on the years right around Raphael Lemkin’s coining of the term genocide during WWII, which you explore in quite some original detail in the book. As you state, you are interested in laying out the context from which Lemkin invented this concept as well as the vested interests that went into its rather restricted legal meaning. Strikingly, you present the genocide concept as resulting from a strategic compromise between Jewish and Christian perspectives around which a politically effective coalition could be built. You argue that the broad and generic conception of group destruction reflected the cultural sensibilities of small nations in Central and Eastern Europe in particular. Let us talk about these questions in turn: How exactly was Lemkin’s new concept of genocide embedded in discussions and debates before and during WWII? What new elements did his compromise offer entail? And in what ways may the Genocide Convention adopted by the General Assembly of the United Nations in late 1948 have simplified and depoliticized familiar themes in the language of transgression? 

Dirk Moses: That’s an intricate series of questions that are covered in chapters three, four, and five. I simplify and compress some 150 pages into a few paragraphs.

One of the basic questions historians ask is why actors like Lemkin feel they need to invent a new concept? It is often said that Winston Churchill announced that a “crime without a name” was being committed by the Germans that Lemkin then called genocide. If we refer to Churchill’s speech in context, he was talking about – in what was a classic Churchillian rhetorical excess – the Nazi German forces’ mass execution of Soviet civilians in the initial phase of the Barbarossa campaign in 1941. He didn’t mention Jews and wasn’t talking about what we now call the Holocaust. 

Moreover, Europeans and many others had a wide variety of terms to describe what the Germans were doing. One of the main ones was state terror. There was a discourse about terrorism at the time, since there were assassinations and other kinds of terrorist crimes within Europe. A Terrorism Convention was considered in 1937, though pertaining to domestic cases and not the laws of war. But metaphorically, referring to terror made perfect sense to contemporaries. State terror could be applied to the Soviet Union or to Nazis. But it’s not a legal concept.

That is relevant because already by 1942 the European governments-in-exile in London, such as the Polish and the Czechoslovak, were pressing the Americans and the British to begin planning for war crimes trials after eventual victory. In January 1942, these smaller states met at the St James’s Palace in London to call for war crimes trials, insisting that better job be done than after the First World War when the German officers and officials literally gotten away with murder. 

An intense debate then developed across the Atlantic involving emigre scholars, government officials, and the World Jewish Congress. These parties argued with each other during various meetings about what the state of extant law was to prosecute the Nazis and whether they were adequate for their radical style of warfare. Nazi warfare and occupation exceeded German conduct in the First World War and the laws in place then, just as in the 1940s, seemed inadequate: The Hague Conventions from 1899 and 1907 which dealt, among other things, with occupation of foreign countries.

For Lemkin, one of the main inadequacies was that they did not criminalize the destruction of nations. This wasn’t Lemkin’s idea: the Polish government-in-exile produced a number of lengthy publications and many pamphlets testifying to the criminality of the German occupation. They listed them and catalogued the evidence in appendices with documents as infractions of The Hague Conventions, but added rhetoric about the German intention to destroy the Polish nation. 

Innovations in international law were proposed at various meetings after 1942. One of them was “crimes against humanity”, commonly associated with Hersch Lauterpacht but with origins in the First World War, another crime against peace coined by the Soviet jurist, Aron Trainin. Both of these made their way into the London Charter of the International Military Tribunals (the Nuremberg Trials) which was ultimately not decided by the so-called small nations, but by the British, the French, the Russians, and the Americans who arrogated the prosecution of Nazi war criminals to themselves. 

Lemkin was trying to influence these debates by proposing genocide to augment the The Hague Conventions: a legal innovation in order to prosecute Nazis. He was not proceeding academically or theoretically: he had a very particular pragmatic task. He failed to convince them to make genocide an independent indictment.

Lemkin was in touch with the World Jewish Congress and with a number of its legal intellectuals based in New York, above all Institute for Jewish Affairs, the WJC’s think tank set up in 1941 with Jewish emigre social scientists and legal scholars who were cataloguing the fate of European Jewish populations. Lemkin observed two limitations in the Allied debate about their fate: first, that the majority Christian populations in the West regarded the Nazis as foremost anti-Christian and incidentally anti-Jewish. He was then living in North Carolina in an intensely Christian environment. What we now call the Holocaust was not front-page news. Second, that the WJC was unable to convince the Allies to include special Jewish indictment in the war crimes trials – a “crime against the Jewish people.” Nor could they convince the Allies to include special Jewish representation in the trials, whether in the form of Jewish lawyers or Jewish judges.

Moreover, the WJC had been rebuked by the governments-in-exile when it purported to speak on behalf of, say, Polish Jews. The Polish government-in-exile said, “no, we speak on behalf of all Polish citizens, whether Jewish, Catholic, or whatever else.” This rift on the Allied side between, if you’d like, the Christian national leadership and the WJC seemed impossible to bridge with legal concepts like crimes against humanity or crimes against peace that did not register the particularity of the Nazi persecution of Jews.

Lemkin decided to bridge the rift with a generic concept – he explicitly used the term “generic concept” – that both encapsulated the extermination of Jews, which by 1944 people were beginning to understand meant their total destruction by mass murder or starvation in ghettos, and so forth – and the various types of persecution endured by the majority Christian populations. The latter included massacres too, of course, but people understood that there could be no intention by the Germans to annihilate them entirely. To be sure, the Germans did foresee reducing their populations by tens of millions, and mass deportation and the elimination of the cultural elites occurred, but there was no sense of total physical extermination. The Poles – and Lemkin – spoke of destruction of the “soul” of the nation to use the kind of romantic language that the nationalists used. 

The concept of genocide unites these two phenomena, which is why it has such a broad definition in Lemkin’s Axis Rule in Occupied Europe, eventually published in 1944. The broad concept allows a coalition of “small nations” and the World Jewish Congress to form, which culminates in the aforementioned UN General Assembly resolution in late 1946, one month after the Nuremberg trials. 

The WJC was an important voice and people were beginning to understand that what we now call the Holocaust had taken place (even though they didn’t use the word the Holocaust at the time) and that the Jews were being particularly targeted.

Why is there a General Assembly resolution calling for a Genocide Convention in November 1946? The outcome of the Nuremberg trials of the major war criminals in October 1946 dismayed many because crimes against humanity had been defined so narrowly, meaning that the persecution of German Jews before the Second World War was excluded, for example: peacetime persecution and even annihilation of groups of your own citizens was not illegal according to the Nuremberg principles. The new concept of genocide was meant to plug this gap. Many of the small nations united in the General Assembly to vote for a Genocide Convention to remedy these defects in the Nuremberg trials. 

We are not dealing here with a gradual, whiggish upward narrative trajectory of international law where Lemkin invents the concept of genocide, then come the Nuremberg trials, followed by the Genocide Convention and the Universal Declaration of Human Rights the next day. The story is zigzagged with one measure reacting to the other. 

If the Nuremberg trials had not limited the application of crimes against humanity, there would never have been the political need or will for a genocide convention. We would have a very different political and criminal vocabulary today, maybe a better one. 

It may be going too far to say that the genocide concept is an accident, because there are compelling historical reasons why the British, the Russians, and the Americans limited the application of crimes against humanity in the Nuremberg trials. They didn’t want to set a precedent of an international tribunal scrutinizing their own domestic dirty laundry, whether the mass murder of own citizens in the 1930s in the case of the Soviets, or the British suppression of colonial uprisings, or the Americans Jim Crow oppression of African Americans. They were quite open about that as you can see in internal memos and public statements.  

In other words, genocide emerges out of a particular conjuncture, rather than as an accident. Even so it is easy to imagine slightly different circumstances in which we wouldn’t have a concept of genocide. The historian in me is pushing this point to show that it’s not a naturally occurring category but a contingent product of the war. 

Alas, ever since, many people view genocide as a discovery rather than as an invention. Genocide is a legal fact but it’s not a naturally occurring one. The concept constructs a reality that we then retrospectively impose on history. That means that we pick out certain types of violence against civilians at the expense of others.

Ferenc Laczó: Your book is titled The Problems of Genocide and it addresses not only conceptual but several more directly political issues as well. You are interested not only in how the criteria of genocide were determined but also whose interests those criteria served. Let me ask you a few questions related to the latter point. What can we say in more general terms about how the genocide concept has operated as an instrument of power? More specifically, what does the concept and its widespread understanding as “the crime of crimes” ignore or even conceal in your view? And what does such an understanding license, at least indirectly? 

Dirk Moses: I have to tell a little bit of a story about its formulation in 1947 and 1948 when genocides becomes enshrined in convention to answer your very important question adequately. And that’s where it goes horribly wrong, at least from my perspective. 

Lemkin has this very broad definition of genocide, which is to some extent incoherent, but it has very useful aspects because it includes what we call persecution to cover all the things that led to the genocide – the exclusion of ethnic groups, for example, from their trades – say Jews or Greeks under the Bulgarian occupation. Lemkin has that in his book Axis Rule in Occupied Europe as a genocidal policy. Now you usually don’t think of not allowing the licenses of artisans as genocidal policies, but Lemkin linked that to a broader policy framework by the occupying power to cripple, if not destroy, the occupied people by ruining their economy and health, suppressing their languages, and so forth. Each of these policies on their own wouldn’t be considered a genocide, but taken together, they push in that direction. That’s what his very broad definition of genocide was trying to achieve.

State representatives were alarmed by that aspect of the draft Genocide Conventions. 

States are jealous of their right to persecute citizens who they think are threatening, and they do not want to be accused of genocide for doing it. 

To avoid the broad definition, they made genocide resemble the Holocaust, meaning mass mortality and excluding the persecution that led to it or that was part of its pre-history before the Second World War. 

So cultural genocide, which is the vehicle for that kind of non-violent oppression of a group, was expunged. So were political groups and political motivations for genocide.

In the debate on the latter, the British also noted that listing motives would allow perpetrators “to claim that they had not committed that crime ‘on grounds of’ one of the motives listed in the article,” an option that suited many countries. New Zealand’s representative, however, pointed out that without listing motives “bombing may be called a crime of genocide,” because “Modern war was total, and there might be bombing which might destroy whole groups”. States wanted to avoid this conclusion.

All parties took pains to distinguish between military violence and genocidal violence. The Secretariat Draft stated that acts that “may result in the total or partial destruction of a group of human beings” are excluded if not intended to destroy “a group of human beings.” Consequently, much Allied policy and practice in the recent war and postwar period were conveniently omitted: “international or civil war, isolated acts of violence not aimed at the destruction of a group of human beings, the policy of compulsory assimilation of a national element, mass displacements of population.” The experts’ commentary of their draft readily admitted that civilian populations were affected in modern warfare with “more or less severe losses,” but distinguished between such circumstances and genocide by arguing that in the latter “one of the belligerents aims at exterminating the population of enemy territory and systematically destroys what are not genuine military objectives.” Military objectives, by contrast, aimed at imposing the victor’s will on the loser, whose existence was not imperiled. 

In other words, killing masses of civilians was not illegal if motivated by military goals: victory, not destruction. 

The logic of military necessity goes something like this: states have a right to wage war, certainly in self-defense, and in doing so, they will attack military objectives, whether it’s a building or a city, or something else. In doing so, they are allowed to incur civilian casualties if they are proportionate to the military objective. This language of proportionality is very important. 

There is a need for these powers to distinguish between war and genocide so states can wage war without fearing prosecution for causing civilian casualties. We’re talking about the beginning of the Cold War when the allies had aerial superiority, and they don’t want their capacity to use atomic weapons, and so forth, to be inhibited or mitigated by the Genocide Convention. The concerted effort to distinguish military necessity from genocide played a role in depoliticizing genocide. 

This issue comes up repeatedly in the various Gaza conflicts in which Israel has vastly superior weaponry to Hamas. When Israel forces destroy a building in which Palestinian families are killed, they will claim that no war crime was committed because the building was a military target; and the Americans, the Germans, and all the other Western powers will agree. As the UN debates about the convention show, people understood that “military necessity” allows states in theory to kill as many civilians as you would in a genocide. 

Lemkin also made this distinction: distinguishing between attacking only national, ethnic, and racial groups and the abstract category of civilians. He is privileging a particular type of civilian in the definition of genocide who are targeted because they’re members of such a group: for who they are, and not because they are incidental but foreseeable casualties in armed conflict. That’s where that phrase “as such” in the Convention does all that work. 

To repeat: in genocide, civilians are killed or subjected to one of these policies listed in the Convention becausethey’re a member of such a group: not for anything they’ve done but solely on the ground of their identity. Because victims of genocide are thought to lack political agency – they are politically innocent – I call it a non-political crime. And so did contemporaries. 

In other words, genocide is taken to mean a crime against identity which fits very well into our current identity politics moment.

The Yemeni family depicted on the cover of my book wasn’t killed because they were members of an ethnic, racial, religious group that somebody hated. They just happened to be the “collateral damage” in a military campaign. What the book is arguing, among other things, is that we forget those kinds of victims and, further, that this is part of the purpose of the Genocide Convention.

Consider what happened very soon after the Genocide Convention. The American laid waste to North Korea, killing millions of people in bombing campaigns. In the next decade they did the same in Indochina, again mainly by aerial bombing along with the use of napalm and chemicals, and so forth. Today bombing is comparatively forensic and surgical: you don’t have saturation bombing, nor atomic bombings incinerating cities. Instead, there is low intensity warfare against potential or alleged terrorists, which – as we know from various recent reports – is consistently killing many civilians, whether as collateral damage, or by accident because of faulty intelligence. 

If you think carefully about this “loophole” in international humanitarian law or in the laws and customs of war, which allows civilian destruction if it is proportionate to the attack on a military objective in a context in which war is permanent rather than occasional you will ask the following question: is it necessary to keep us safe for those missiles flying around permanently over parts of Pakistan and in the Middle East killing a lot of civilians all the time? For we are talking about a permanent policy of killing civilians in this policy because the war on terrorism is a permanent policy. Now that’s not genocide – it is the wrong concept there – but why does it now shock our consciences like genocide? 

By fixating on genocide as “the crime of crimes,” we are blind to the violence that all states – not just Western states, obviously – can and do commit at times in the interest of what I call permanent security.

The end of Part I

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