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The Moral Distinctiveness of Genocide
Steven P, Lee
Hart Visiting Research Fellow, University College, Oxford
Hobart and William Smith Colleges, Geneva, NY
Genocide has been called “the crime of crimes.”1 Genocide is thought to be morally special, a
class of moral evil unto itself. The belief that genocide is morally special is wide-spread, but it is not clear
what it means to claim that genocide has this status.2 In this paper, I offer an account of genocide that
assumes it to be morally special. I will take it to be one of the principal requirements of an adequate
account of genocide that it explain why and how genocide is morally special. The contemporary
importance of the topic is clear. International concern about genocide, after peaking in the aftermath of
3
World War II and taking a hiatus during the cold war, has come back forcefully.
It is now a central
concern of international law, following the ethnically-based slaughters in Rwanda, the former Yugoslavia,
and now Darfur, and the legal response to them. In addition, genocide provides the prime justification for
humanitarian military intervention, an important form of military activity since the end of the cold war.
While this paper will borrow from the legal discussion of genocide, its main concern is the moral status of
this crime against humanity.4
I.
Some accounts of genocide are individualist and some are collectivist. For an individualist
account, the distinctiveness of genocide is the harm done to its individual victims, or the intention to do
that harm. In the case of a collectivist account, genocide is distinctive due to the harm done to the group,
or the intention to do that harm. An individualist account treats individuals as the primary object of
genocidal harm and treats harm to individuals (or the intention to do such) as constituting the genocide. A
collectivist account focuses on the harm done to (or the destruction of) a genocide-eligible kind (or the
intent to destroy such a kind). (By genocide-eligible kind, I mean a kind or group such that serious harm
inflicted on a large number of its members, or the intention to inflict such harm, may count as genocide.5)
In a collectivist account, the object of genocide is primarily the group or kind, the harm to the individual
members being only a means to or a consequence of harm to the group.6 One might say that, for a
collectivist account, the harm characterizing genocide is supervenient on the harm done to the individual
members of the group.7 The spirit of the collectivist approach is nicely captured by a participant in the
sessions formulating the United Nations Genocide Convention: “The victim of the crime of genocide is a
group. It is not a greater or smaller number of individuals who are affected for a particular reason . . . but
a group as such.”8
Initially, a collectivist account of genocide may seem more appealing than an individualist
account. The literal meaning of “genocide,” after all, is the killing of a kind. More importantly, a
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collectivist account naturally seems to capture what makes genocide distinctive from other wrongs, what
makes it morally special. Genocide is special because it is a crime against the group or kind, not simply
against its individual victims. Consider, for example, that genocides are often cases of mass murder, but
not all mass murders are genocides. It seems plausible that what morally distinguishes genocides
involving mass murder from mere mass murders is that genocide involves the intention to destroy a group
to which the victims belong, and this understanding requires a collectivist account. A nongenocidal mass
murder lacks the special harm to the group (or the intention to do such) that characterizes genocide on a
collectivist account.
But this leads to an apparent dilemma. There is reason to avoid a collectivist account because, in
general, collectivist accounts of social phenomena have familiar problems about attributing an
independent reality to groups. But, as we have just seen, there is reason to accept a collectivist account
because it seems necessary to explain how genocide is morally special. So the dilemma is that if we
accept a collectivist account of genocide, we have ontological troubles, while if we reject a collectivist
account, we lack a basis for showing that genocide is morally special. This is a dilemma for me because I
believe that collectivist accounts are problematic and I assume that genocide is morally special. My
solution will be to argue that there is in fact an individualist account of genocide that shows it to be
morally special.
There is another important distinction between accounts of genocide. It is based on the legal
elements of an action: actus reus, the physical or material element, specifically, the harm that is imposed,
and mens rea, the mental element, specifically, the state of mind in which the harm is imposed or the
intention to inflict that harm. Genocide has both actus reus and mens rea elements.9 But there is a
distinction between accounts of genocide based on which of these two elements is deemed characteristic
of genocide when it is compared with similar forms of wrong-doing. (I will mark this difference by saying
that an account of genocide emphasizes either actus reus or mens rea.) For example, in accounts of
murder mens rea is characteristic of the crime because it is the intention that distinguishes murder from
other sorts of killings (such as manslaughter). Murder, of course, has anactus reus, but it is the mens rea
that distinguishes it. In the case of genocide, accounts emphasizingactus reus define genocide as
distinguished by the harm it does, whether to its individual victims or to the kind or group to which they
belong. In contrast, accounts emphasizing mens rea define genocide as distinguished by the intention with
which the harm is done (as with murder). This is similar to the way things are for the distinction between
individualist and collectivist accounts. All accounts of genocide refer to both its individual victims and
the group to which they belong, but individualist and collectivist accounts differ in which of these they
emphasize. The two distinctions generate a matrix of four different types of accounts (figure 1). I propose
to examine these four types and argue that the best account is of type IV, the one that is individualist and
emphasizes mens rea, showing how such an account can show how it is that genocide is morally special.
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Principal characteristic of
genocide
Emphasis on actus reus
Individualist account
Collectivist account
III. The special sort of harm that
II. The destruction of the
genocide does to its individual
genocide-eligible kind or group.
victims, or the sum of such harm.
Emphasis on mens rea
IV. The special intention
I. The special intention to destroy
genocide involves toward its
the genocide-eligible kind or
individual victims.
group.
Figure 1
II.
Accounts of genocide are represented, in part, by definitions of genocide. One value of a
definition, of course, is that it helps to fix the extension of a concept and to categorize borderline cases,
and this would be welcome in the case of genocide, given the different ways it is used by different
observers. Commenting on this variability, Berel Lang observes:
I take such looseness of usage here mainly as evidence of the need to mark out the
characteristic features of genocide, and, beyond this, to see what in that concept
warrants the sense of special wrongdoing that the term has acquired.10
As with any important normative concept, however, one should expect ragged edges rather than a tight set
of necessary and sufficient conditions.
I will begin by examining the best known definition of genocide, that offered by the 1948 United
Nations Convention on Genocide:
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
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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.11
This definition raises key questions about five central concepts that need to be addressed in any account
of genocide.
(1) What kinds or groups of persons may be the targets of genocide? According to the
Convention, genocide may be committed against “national, ethnical, racial or religious” groups. But are
these the only genocide-eligible kinds? If so, does specifying them make the definition transparent in
terms of what is morally special about genocide? Is there some feature of these groups that makes
targeting them genocidal and also explains why genocide is morally special?
(2) 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
distinguished by the harm done to its individual victims? Article II of the Convention implies that
genocide is distinguished by harm to the group, as it requires an intention to destroy (“in whole or in
part”) the group “as such,” with the harms to the individual group members listed in clauses (a)-(e) as the
means to that end. So the Convention definition represents a collectivist account.
(3) For accounts of genocide emphasizing mens rea, as the Convention definition does, what is
the nature of the intentions of the perpetrators characteristic of genocide? According to the Convention,
genocide must involve the intention to destroy the group (in whole or in part). But is this correct? Is a
genocidal intention principally an intention to destroy a group? Must the intentions of the perpetrators be
the destruction of the group in question, or may their intentions go no further than harm to their individual
victims (because of their membership in the group)? Must their intentions extend, as the Convention
implies, to seeing the harm they do to individuals as part of a larger project of harm to the group?
(4) What is the number of individuals of a kind that must be seriously harmed for there to be a
genocide? A quick reading of the Convention might suggest that the number of individuals seriously
harmed must be sufficient to destroy the group “in whole or in part.” But the reference to group
destruction occurs in the context of the perpetrators’ intention, not of the result of their actions. According
to the Convention, if one intends to destroy a group, in whole or in part, but fails, one may still have
committed genocide. What does it mean to destroy a group, whether in whole or in part? One possibility
is to think of the group in terms of its possession of a distinctive culture, in which case the group would
be destroyed when the mechanisms of cultural transmission have been disabled.
(5) What are the chief harms to individuals that are brought about when genocide occurs? Does
genocide include nonlethal harms, as the Convention implies, or are only individual murders relevant to
genocide? All of the lettered clauses in Article II, save for (a), refer to nonlethal harms, and this is
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because a group can be eliminated over time without murdering its members, if it is made unable to
reproduce itself, to replace members who die with new members. This can be done in nonlethal ways, for
example, by either eliminating births through sterilization or disrupting social reproduction by separating
children from parents or stressing the basic social systems involved, as might be done through a mass
rape campaign.
As the discussion in (2) and (3) makes clear, the UN Convention represents a type I account. It is
collectivist because it focuses on the group, and it emphasizesmens rea because it stipulates in the main
clause that it is the intention to destroy the group that makes genocide distinctive. The account is not
individualist because the harms to individuals, stipulated in clauses (a) through (e), are presented as
means to the group harm. The account does not emphasize theactus reus for the same reason—clauses (a)
through (e), which describe the harms involved, are subordinate to the intention indicated in the main
clause.12 What is distinctive of genocide is “the intent to destroy” the group. According to the Convention,
perpetrators of genocide need not succeed in destroying the group, though they presumably must harm at
least some members of the group (with the intention to destroy the group).13 If we regard an attempt as
involving an intention to commit an act and an effort that falls substantially short of achieving the
intended result (as in attempted murder), then we could say that, according to the Convention, and type I
accounts in general, genocide is a crime of attempt.14
Another collectivist account is offered by Berel Lang.15 According to Lang, in genocide, “the
murder committed is of two kinds of beings: individuals—yes, but also, and distinctively, the group of
which the individuals are members.” Groups are beings because they can “have an identity larger than
and separable from the individuals who make them up,” and they “are capable of actions and
achievements” beyond those of their individual members.16 The idea of “group rights” underwrites the
“identification and criminalization of genocide.”17 Schabas also speaks of group rights, noting that “the
Genocide Convention is associated with the right to life of human groups.”18 Lang’s account shares with
other collectivist accounts the commitment to a robust ontology of groups. Speaking of groups, Lang
asserts: “[T]hey do constitute lives and histories apart from the lives and histories of their individual
members. As genocide makes clear, they can also suffer death.”19 Lang’s account, like the UN Convention
account, is of type I, in that he focuses on the intent involved, as when he speaks of what is distinctive of
genocide being the murder of a group.
A type II account is also collectivist, but under it, what is distinctive of genocide is the harm done
to the group, rather than the intention to do that harm. A type II account would not, of course, stipulate
that agents of genocide lack an intention to do this harm (that the genocidal harm is unintentional or
inadvertent), but simply that, in the absence of the group harm, genocide has not occurred. The intention
to do such harm is not sufficient for genocide, as it is under a type I account. In some respects, at least, a
type II account seems closer to our ordinary notion of genocide, which is likely to label an occurrence
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genocide only when a great deal of actual harm to the group is accomplished. But it is hard to find a
theorist who explicitly endorses such an account. The reason may be that there is an inherent tension
between the collectivist character of a type II account and its requirement for actual harm. Combining
these two characteristics, genocide requires the destruction of a group, and this seems practically
impossible. It has certainly not been the case in historical genocides that all, or almost all, the members of
the target groups have been killed, which seems to be a plausible necessary condition for the group to
have been destroyed.
But it is the collectivist character of accounts of both types I and II that I wish to emphasize. On a
collectivist account of genocide, there is moral value in the group that is not reducible to the moral value
of its members, and it is the harm to the group’s moral value (or the intent to do that harm) that is the
special moral wrong of genocide. One attraction of a collectivist account, as mentioned, is the idea of
group destruction provides a ready way to explain the morally special character of genocide. Indeed, Lang
is attracted to a collectivist account because he seeks an account that shows how genocide is morally
special.20 But does it make sense to say that a group has moral value, not reducible to the value of its
individual members? How should the existence of groups be understood? Can everything one wants to
say about harm to or the destruction of groups be taken as shorthand for what can be said about harms to
or destruction of their individual members? Collectivist accounts have their ontological problems, and it
may be that the only reason some are drawn to a collectivist account of genocide is that it seems to be the
only way to explain why genocide is morally special. If one can show that there is a clear explanation of
the morally special character of genocide in terms of an individualist account, a collectivist account may
lose some of its allure. I will not attempt to refute collectivist accounts of genocide, but merely, in a spirit
of parsimony, seek to show that the harm (or the intention to harm) the individual victims of genocide is
sufficient to show that genocide is morally special. To this end, I move on to accounts of types III and IV.
III.
Membership in a group is often of great value to individuals. People identify themselves as
members of groups, and this gives their lives meaning and is important or necessary for their self-identity,
perhaps even their sense of personhood. Lang mentions the loss of this value as a result of genocidal
destruction of the group.21 Survivors of genocide may feel a strong sense of loss because the group which
was a source of their identity is now largely gone. But this is harm to individuals, and thus could be the
basis for an account of type III, in which genocide is characterized primarily in terms of the harm to its
individual victims.
An account of type III is offered by Claudia Card. She begins by asserting:
What distinguishes genocide is not that it has a different kind of victim, namely,
groups (although it is a convenient shorthand to speak of targeting groups).
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Rather, the kind of harm suffered by individual victims, in virtue of their group
membership, is not captured by other crimes.22
Referring to the “culpable wrongdoing” of the perpetrators of genocide and the “intolerable harm to
victims,” she says: “Most often the second element, intolerable harm, is what distinguishes evils from
ordinary wrongs.”23 It is the sort of harm done to individual victims that makes genocide morally special.
The special harm suffered by the victims of genocide is social death, which “enables us to distinguish the
peculiar evil of genocide from the evils of other mass murders.” Social death is the loss of the “social
vitality” existing “through relationships, contemporary and intergenerational, that create an identity that
gives meaning to a life.”24 Humans exist in social relationships that give their lives meaning. When many
members of a group are killed, those relationships come to an end and, if the group is especially important
to its members, this is a severe form of harm to the surviving individuals. “When a group with its own
cultural identity is destroyed, its survivors lose their cultural heritage and may even lose their
intergenerational connections.”25
Before assessing Card’s proposal, let me introduce a notion important for an individualist account
of genocide, that of genocidal harm. Card’s social death would be an example. A genocide has genocidal
harms as parts. On an individualist account, the concept of genocidal harm has priority over that of
genocide because the individual harm is explanatorily prior. A genocide is composed of genocidal harms.
The former concept is derived from the latter; the adjective has priority over the noun. The problem for an
individualist account is to define genocidal harm without needing to refer to the fact that it is part of a
genocide. Earlier, in question (5), I asked what different kinds of harms can count as genocidal harms.
While the paradigmatic genocidal harm is genocidal murder,26 there is, I think no reason to exclude the
other significant harms of the sorts mentioned in the UN Convention (seriously injuring, sterilizing,
removing children), and others as well, such as rape.27 Any of these could result in the substantial damage
to the group, either by destroying its members or by making them unable, physically or culturally, to
produce new members to replace the old.28
Consider the following way of categorizing interpersonal harms (or “harmings,” referring to the
action rather than the result). At a general level one may distinguish between harmings in which the
perpetrator inflicts the harm because of the particular person the victim is and those in which the
perpetrator inflicts the harm because the victim is of a certain kind, that is, is a member of a group defined
by that kind, or is perceived by the perpetrator to be of that kind. By the first sort, I have in mind
harmings among close acquaintances where the motive of the perpetrator is, for example, hatred of the
particular victim, on the assumption that hatred, like love, takes a unique object. Whether or not there are
harmings of this sort, my interest is in harmings of the second sort, which are probably the large majority
in any case. These are harmings due to the (perceived) kind of the victim, or harmings due to kind, for
short. These are harmings due to some characteristic the victim has (or is perceived to have), defining a
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group to which the perpetrator perceives the victim to belong. An example is a killing committed in a
mugging where the murder is due to the perpetrator’s belief that the victim is of the kind “having money
and resisting handing it over.” If the victim were not perceived to be of that kind, there would be no
reason to commit the murder.
Among harmings due to kind, we can further distinguish between cases where the kind justifies
the harmings and cases where it does not. Cases of the former sort would include killings in self-defense,
where the perpetrator believes the victim to be of the kind “posing an imminent threat to my life.” But
most harmings due to kind are unjustified. Among these, we may distinguish, finally, between the
infliction of genocidal harm and the infliction of nongenocidal harm. The question is whether we can find
an account of genocidal harm that shows genocide to be morally special?
Card’s candidate for genocidal harm is social death.29 Social death is the loss of relationships that
give meaning to life, relationships which occur especially within important social groups. In the most
obvious sense of social death, those who suffer it in genocide are the survivors. They are the ones that
have to go on living in the absence of the social relationships that make their lives meaningful. In a
perhaps similar vein, Hannah Arendt notes that genocide creates both actual corpses and “living
corpses.”30 But, how does the harm of social death manifest itself in the case of the actual corpses, in
cases where the genocide involves mass murder? Card is not completely clear on this. She speaks of the
indecent deaths that most victims of genocidal murder undergo, but then points out that such treatment in
itself is already a crime against humanity, so not special to genocide.31 (In addition, many victims of
nongenocidal murder suffer degrading treatment as well.) So, if social death is distinctive of genocide and
applies to those murdered, then it must be something other than the indecent treatment they usually suffer.
To the extent that social death is a loss of social relationships, it characterizes every death, not simply
those in genocide. Card at one point speaks of genocidal murders being meaningless deaths, but it is not
clear how these deaths are any more meaningless than many deaths that are not genocidal.32
In the face of these difficulties of applying the harm of social death to the victims of genocidal
murder, perhaps we should limit the harm of social death to the survivors of genocide. But this raises two
problems. First, consider the distinction between primary victims, those murdered in a genocide, and
secondary victims, the survivors. The view we are considering is that genocide is characterized by the
special harm suffered by its secondary victims. But this makes genocides involving mass murder (as most
do) morally special by making them into two crimes with two sets of victims, the murder of the primary
victims and the social death of the survivors. In labeling genocide morally special, we seem instead to be
thinking about the nature of the principal crime, genocidal murder, rather than any additional, nonlethal
harms that result. In addition, it seems that social death occurs only when a sufficient portion of a group
has been destroyed. The reason is that social death depends on destruction of the group’s social function
in the lives of its members, and that social function is lost (for the survivors) only when a substantial
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portion of the group is lost. So, if social death is characteristic of genocide, genocide can occur only when
a large enough portion of the group in question has been destroyed. It does not seem that a definition of
genocide should make its occurrence dependent on an empirical issue like where the tipping point is at
which the portion of the group that is lost leads to loss of the group’s social function for the survivors.
Secondly, this approach has some paradoxical implications. Consider the distinction among a
partial genocide, in which a small minority of a group is lost, a substantial genocide, in which a
substantial majority of a group is lost, and a complete genocide, in which all members of a group are list.
Now, a complete genocide has no survivors, and a partial genocide likely has no survivors who suffer
social death, because not enough members would have been lost to destroy the group’s social function.
Only in the case of a substantial genocide, it seems, would survivors suffer social death. Thus, if the
social death of survivors is distinctive of genocide, a partial and a complete genocide are not really
genocides at all, and, even if they were, a substantial genocide would be morally worse than a complete
genocide, because a complete genocide would have no secondary victims to suffer social death.
So, Card’s account has serious problems. But there is another sort of type III account that may be
more successful. Card’s approach is to pick out a certain sort of harm, social death, which is distinctive of
genocide and also morally special. What instead if we consider all the harmful consequences of genocide
and propose that it is the sum total of these harms that is morally distinctive, that this total is greater than
the total of harms that would result from, say, a mere mass murder?33 The harms of genocide may not
differ in quality, but they differ in quantity. Genocide is morally special because it results in a greater
level of overall harm, not because of some morally distinctive harm characteristic of it. This is still a type
III account because the emphasis remains on consequences to individuals (actus reus in a broad sense).
One difficulty with this approach is that the overall harm of genocide depends on the number of people in
the group effected, and, for example, it is implausible that the overall harm of a small genocide could be
greater than that of a large nongenocidal mass murder. But setting this difficulty aside, we may ask, does a
murderous genocide result in a greater total of harm than a mere mass murder, when the number of
murders in each case is held constant?
This is a question posed by Douglas Lackey.34 He speaks of the “Holocaust Catalogue,” the sum
of the harms resulting from the Holocaust, and the “Random Catalogue,” the sum of the harms resulting
from a random collection of murders. If there were the same number of murders in each catalogue, would
the sum of harms be greater for the Holocaust Catalogue than for the Random Catalogue? On the side of
the Holocaust Catalogue, Lackey includes the effects of cultural destruction (presumably including what
Card understands as social death), and this might seem to insure that the Holocaust Catalogue would be
greater. But not so, Lackey argues. “The reason that the sums should be roughly equal is that, in a
genocidal mass murder, the cultural side-effects are greater but the short range side-effects are less, since
those who would suffer them are usually victims as well.”35 The suffering of family and friends of those
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murdered is greater in the Random Catalogue because many of the family and friends of the Holocaust
victims were killed as well. This argument casts doubt on whether the notion of total harm can work to
distinguish genocide.
The underlying problem with type III accounts may be that, while they are individualist, they are,
in a sense, not individualist enough. They are individualist in that the harm considered is harm to
individuals rather than to groups as such, but they share with collectivist accounts of type II a reference to
the group. The difference is that type III accounts focus on the group not as an entity, but as a collection
of individuals that, because of their social interactions, have certain characteristic effects on each other,
some of which are of great individual value. But a more thoroughly individualist account, one not making
reference to the group in explaining what is distinctive of genocide, might avoid these problems. This
leads to a consideration of type IV accounts.
IV.
On an individualist account that emphasizes mens rea, the moral distinctiveness of genocide is the
mental state of the perpetrators of the individual genocidal harms. It is not the destruction of (or intention
to destroy) the kind or group, nor a special sort of individual harm, nor a greater sum of individual harms.
The relevant mens rea in the case of a type I account is an intention to destroy a kind or group as such.
The relevant mens rea in the case of a type IV account is an intention to harm or kill individuals because
they are of a certain kind, or are members of a certain group. On a type IV account, a genocidal harming
is a harming in which the perpetrator has such a mental state.
Here it is helpful to address question (1): What kinds or groups are genocide-eligible? What are
the kinds that make the harming of people because they are of that kind genocidal? The Convention
asserts that these are “national, ethnical, racial or religious” kinds. But this simple enumeration does not
indicate what principle is operative in the selection, and knowing this principle is necessary in
understanding the role that genocide-eligible kinds play in a type IV account of how genocide is morally
distinctive.
Note that an analogous question arises in determining which, if any, domestic crimes arehate
crimes. Crimes are hate crimes when the perpetrator chooses a victim because he is a member of a certain
group toward which the perpetrator has an animus or hatred. Hate crimes are regarded by many as
justifying the imposition of a higher level of punishment because they are morally distinctive from (and
morally worse than) the regular crimes they involve (such as assault). This justification may involve an
appeal to the more harmful consequences of such crimes (emphasizing theactus reus, in our extended
sense) or to the perpetrator’s extra culpability (emphasizing themens rea). But in either case, the strength
of the justification will depend on which groups have members against which hate crimes can be
committed. As in the case of genocidal harmings, we need a principle for the selection of these groups
that will reveal the special moral nature of hate crimes. Perhaps this principle will turn out to be the same
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as the one that defines genocidal harmings as morally special. Indeed, genocidal harmings may
themselves be a sort of hate crime.
What is the principle that indicates a kind to be genocide-eligible? One way to approach this is to
consider the relation between genocide and humanity. For example, Emil Fackenheim suggests that
genocide involves “the destruction of the humanity (as well as the lives) of the victims.”36 A proposal
based on this is that a kind is genocide-eligible only if harming individuals because they are of that kind is
an attack on their humanity. This proposal connects with the legal designation of genocide is a crime
against humanity. In Fackenheim’s remark, humanity seems to be individuated, to be that within each of
us that makes us human. There is, however, another notion of humanity sometimes appealed to in
discussions of genocide. Larry May speaks of genocide as doing harm to individuals “in a way that harms
humanity.”37 This seems to be humanity understood as embodied in the collection of all human beings.
May says that humanity in this sense has interests and so can be harmed when those interests are set
back.38 Let me refer to these two senses of humanity as internal humanity, which is within each of us, and
external humanity, which is the human community collectively. Perhaps one or the other of these may
help us to discover the principle by which genocide-eligible kinds may be selected.
Consider another approach to this. Claudia Card asserts that genocide “targets people on the basis
of who they are rather than on the basis of what they have done.”39 Michael Walzer also refers to this
contrast, distinguishing between “aiming at particular people because of things they have done or are
doing, and aiming at whole groups of people, indiscriminately, because of who they are.”40 Lang connects
this contrast and the idea of humanity:
[T]he genocidal murder rejects the humanity of the victims by denying their
autonomy or freedom of decision. They are killed not for choices they have made
or acts they have committed[.]41
This contrast between targeting people for harm because of what they have done and targeting them
because who they are independent of what they have done may be expressed in another way. Individuals
may be targeted for harm depending on whether they are members of anelective kind or group (one to
which they have chosen to belong) or of a nonelective kind or group (one to which they have not chosen
to belong). Membership in elective groups involves what a persondoes, while membership in nonelective
groups involves what a person is, independent of her choices. The suggestion is that genocide-eligible
kinds are nonelective kinds.
The moral relevance of this distinction is the value of individual choice. Our internal humanity,
one may say, lies in our power to choose. It makes a moral difference whether I impose harm on someone
because of choices he has made or independent of such choices. So, if a person is harmed because of her
kind, it makes a moral difference whether the kind is elective or nonelective. Larry May observes that
certain groups may “have significance because their memberships are based on immutable
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characteristics” and that one should not be discriminated against because of such characteristics.42
Characteristics that are immutable are beyond a person’s choice. When people are treated without regard
to their choices, they are treated morally worse than if their treatment somehow reflects their choices. The
proposed principle is, then, that kinds are genocide-eligible only if they are nonelective.
This principle seems to reflect the thinking of the delegates who drew up the UN Convention. For
example, despite extensive argument on the subject, political groups were excluded from the Convention
list, at least in part because such groups were recognized to be elective.43 But a problem immediately
arises for this proposed principle. Not all the sorts of groups referred to in the Convention are nonelective.
Schabas observes: “On closer scrutiny, three of the four categories in the Convention enumeration,
national groups, ethnic groups and religious groups, seem neither permanent nor stable.”44 One can, for
example, change religions or assimilate into a different ethnic group. Of the Convention four, three (the
religious, the ethnic, and the national) seem to be generally elective (at least by omission45). Yet the mass
murder of members of a national, religious, or ethnic group (because of their group membership) is a
paradigmatic example of genocide. So how can the nonelectiveness of group membership be the basis of
the principle we are looking for?
This problem can be avoided. Because a type IV account emphasizes themens rea of the
perpetrators, it must refer to their beliefs and what they think they are doing, even when this is different
from what they are actually doing. If the elective/nonelective distinction is relevant to an account of
genocide, it must be because it plays a role in the intentions, and so the beliefs, of the perpetrators. But, in
that case, what is relevant is not whether membership in the group in question is objectively nonelective,
but rather, whether it is believed to be nonelective by the perpetrators. As Schabas observes: “It is the
offender who defines the individual victim’s status as a member of a group protected by the
Convention.”46 Similarly, Lang notes that “identification of the group and its members is typically
determined for the purposes of genocide by the agent of genocide, not by its victims.”47
This point is illustrated by the Holocaust. The Nazis regarded being Jewish as a nonelective
property, despite the fact that religious affiliation is generally elective. A Jew, like a member of any faith,
may convert to another religion, but the Nazis did not recognize such conversions. It is true that, in
practice, the Nazis defined Jewishness, through as an application of the Nuremberg Laws, as requiring at
least three Jewish grandparents, and this allowed for some of those whose earlier descendents had
converted to escape the classification.48 But in theory, at least, the Nazis regarded being Jewish as a racial
rather than a religious characteristic. More to the point, they refused to allow individuals subject to
persecution for being Jewish to avoid that persecution by choosing (or having chosen) to change their
religious affiliation. In this sense, the Nazis perceived being a Jew not to be a matter of choice. Thus,
while being Jewish, like other religious identifications, is objectively elective (at least by omission), the
Nazis perceived it to be nonelective. On the criterion I am suggesting, the Holocaust is a genocide
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because it involved mass murder of individuals who were perceived by the murderers to be of a
nonelective kind.
My claim is that this point applies generally to genocides motivated by the religious, ethnic, and
nationalist group-memberships of the victims. Like the Holocaust, such genocides may be understood as
cases where the perpetrators perceive membership in the groups whose members they target to be
nonelective, even when they are in fact elective (again, at least by omission). In other words, when
members of religious, ethnic, and nationalist groups are victims of genocide because of those
memberships, the perpetrators perceive those memberships to be like racial membership, nonelective, as
the Nazis did of Jews in the Holocaust.
To take a more recent example, consider the case of the mass murder of Bosnian Muslims at
Srebenicia in July, 1995 by Serbian forces under Radovan Karadzic and Ratko Mladic. My claim is that
these murders were genocidal because Karadzic and company perceived being a Muslim as a nonelective
property, as being a religious identity from which one could not convert, as the Nazis perceived being
Jewish. This might seem to be an implausible claim, in the light of the fact that that Karadzic would
surely have acknowledged that any one of his Muslim victims could have gone through an
institutionalized conversion process to become, say, an Orthodox Christian. But I expect that Karadzic
would regard this as a conversion only in a superficial sense, a merely apparent conversion, and that he
would regard a genuine or deep conversion as impossible.49
This distinction between apparent and real conversion may not have been fully present in the
minds of the perpetrators of the Srebenicia massacre, but they would have recognized that distinction
implicitly in so far as they regarded their victims as irredeemably worth killing. In the eyes of the
perpetrators, nothing the victims could have done (including going through a superficial conversion)
would have made their lives worth saving. In the case of an elective characteristic, it is possible, at least
in theory, for a person to lose the characteristic by choosing to leave the group defined by it. In the case of
a nonelective characteristic, this is, of course, impossible. When someone chooses to leave an elective
group, we may say, on analogy with changing religious affiliation, that he “converts.” Now consider that
one who intends to kill another due to the latter’s group membership sometimes offers, or could offer, that
person the chance to save his life by “converting” or choosing to abandon the group. But the offering of
such a conversion opportunity would make no sense to mass murders such as Karadzic. They would not
entertain such a possibility, not because of the practical difficulty involved in allowing for conversion, but
because conversion would be thought to be impossible due to the nonelective nature of the group
membership. It is the attitude of the murderers that the lives of their victims are irredeemably worthless
that makes the murders genocidal.
One objection to my criterion is that perpetrators of genocide will sometimes speak as if they
believe that the characteristics in virtue of which they target their victims are elective. For example, they
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may claim that the victims deserve to be harmed, that they are “getting what is coming to them,” implying
that the group membership for which they are being victimized is not only a choice, but a choice
deserving punishment. But it is quite easy to see that such claims are transparently false attempts to make
the victimization seem less morally unacceptable.50 One reason is that the claims of desert usually are
empirically and/or normatively ludicrous, as when the murder of Jews is “justified” by claims about their
malicious control of international banking. But a more central reason is that, even if the rationales were
accepted at face value, they would not justify what the perpetrators in fact do. Consider the 1915 genocide
of the Armenians by the Ottoman Turks, in which an estimated one million Armenians were massacred or
staved to death.51 The main rationale given by the perpetrators was that the Armenians posed a security
threat to the Ottoman Empire.52 Posing a security threat is presumably an elective characteristic and,
hence, if this were the real reason, the destruction of the Armenians would not be genocide on my
account. But the Ottomans’ did not mark for death only those Armenians against whom there was some
evidence of their being a security threat, nor even only those who were capable of being security threats
(that is were competent adults), but included children, the aged, and the infirm in their mass murder. All
were killed indiscriminately. Thus the offered rationale did not cover what the perpetrators actually did,
and so could not possibly justify what was done.53
But there are also apparent counterexamples from the other direction: hypothetical cases seeming
to show that my account is too broad, in other words, cases that would count as genocide for me, but
which would not be generally regarded as genocides. Many human characteristics are, like race,
nonelective, such as shoe size and eye color. The criticism is that my account seems to imply falsely that
murdering someone because of such characteristics would be genocidal. The implied possibility of a
shoe-size genocide would seem to be a counterexample to my account.54 There is an obvious difference
between race and shoe-size, namely, that race is a matter of great social significance, while shoe size is
not. Race, but not shoe size, leads to differences in social treatment and the imposition of social
hierarchies. But the idea of shoe-size genocide is not a counterexample to my account because, if it were
the case that people started killing other people because of their shoe-size, shoe size would, for that very
reason, have become a matter of social significance, and there would, under those circumstances, be little
hesitation in calling such killings genocidal.55
So, my account is that genocidal harms are harms committed because the victims belong to a kind
that the perpetrators believe is nonelective. Genocide-eligible kinds are kinds that are perceived by the
perpetrators as nonelective. Returning to Fackenheim’s language, genocide negates not simply the lives of
its victims, but their internal humanity, that is, the dignity residing in their power of choice. The
imposition of genocidal harm shows no respect for the victims’ power of choice, and so treats them as
nonhuman.
V.
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Let me return to the idea of someone’s choosing to abandon membership in a group that is subject
to persecution in order to avoid the persecution. Consider this historical episode. As a result of pogroms
in Spain around 1391, many Jews, called conversos, publically converted to Christianity in order to avoid
often murderous persecution. “The pogroms of 1391 were especially significant because of the
subsequent mass conversion of Jews to Christianity in response to the violence perpetrated against
them.”56 At least some aspects of this historical episode fit what I call theconversion paradigm, a
situation in which a victimizer, intending to harm someone because of that person’s perceived kind, but
believing that the kind is elective, offers the potential victim an opportunity to avoid the harm by electing
to cease being of that kind, that is, to “convert” from that kind to a different kind. To the extent that the
conversion paradigm applied to the conversos, they were treated differently from the Jews in the
Holocaust. The Nazi’s murderers disregarded their victims choices, while, at least in some cases, the
perpetrators of the pogroms murdered their victims only if they rejected the opportunity to convert from
Judaism. The Spanish persecutors clearly regarded their victims as having chosen (by omission) to be
Jewish (by refusing to convert) and the Nazis regarded their victims as not having chosen to be Jewish, a
crucial difference on my account, as it indicates that the Holocaust murders were genocidal and the
Spanish pogrom murders (in cases where the opportunity to convert was offered) were not.
Consider a more mundane example of the conversion paradigm. A mugger sticks a gun in
someone’s ribs and says, “your money or your life.” The mugger regards her victim as belonging to the
kind “those who will not give their money to me.” The mugger, wanting the victim’s money, takes this as
a reason to kill the victim. But, believing that this kind is elective, the mugger offers the victim an
opportunity to “convert,” to become instead the kind “those who will give their money to me.” This offer
is announced by the phrase, “your money or your life.” Once the victim “converts” to the latter kind by
handing over his money, the mugger no longer has a reason to kill him. The mugger might shoot the
victim without a conversion offer or should the victim refuse the offer, but in either case the murder
would not be genocidal because the mugger would have regarded the group to which the victim belonged,
which was the reason for the shooting, as elective.
But, returning to the historical example, is there really a morally relevant difference between a
Holocaust victim and a Spanish Jew murdered because he refused to become aconverso? Both murder
victims were completely innocent, in the sense that neither had done anything that would justify being
killed. But there is an important moral difference between them nonetheless. The pogrom victim was
treated in a way that took some account of her choices (her refusal to convert), whereas the victim of the
Holocaust was treated in a way that took no account of his choices. This is a clear moral difference,
despite the unjustified nature of both killings and the fact that both were acts of murder. The Spanish
persecutor treated his victims as choosing beings, while the Nazi executioner did not. Indeed, the pogrom
victim who was murdered after refusing a conversion offer likely regarded her choice as the highest
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expression of her autonomy, as perhaps the defining choice of her life. Given the context, she would
welcome the opportunity to affirm her faith, to bear public witness in this way. For her choice of death,
many would regard her as a moral hero, as expressing her humanity to the highest degree. If a person
refused a conversion offer because her religious faith ran so deep that abandoning it was not possible for
her, still we would regard that as a genuine choice worthy of praise as much as we would regard as a
matter of worthy choice the courageous act of a man who, because of his virtue, could not do otherwise.
In contrast, victims of the Holocaust did not face death as an act of choice, as the Spanish pogrom hero
did, nor as victims whose murderers recognized them as choosing beings in any lesser sense, but rather as
creatures whose powers of choice were not recognized at all.
The conversion paradigm is not the important point morally; it simply illustrates the perceived
electivity of a kind in a dramatic fashion. An offer of conversion is, in fact, often not forthcoming in
situations where the kind resulting in the victimization is believed by the victimizer to be elective. In the
case of muggings, for example, the perpetrator sometimes murders the victim to obtain the money without
giving the victim the option of handing it over. Considering a broad range of sorts of victimization, it is
likely that offers of conversion are not very common in cases where kinds believed by the victimizer to be
elective are the reason for the victimization. Part of the reason for this is that such offers are often
impractical and sometimes impossible, despite the kind being elective.57 But the moral relevance of the
difference remains even in the absence of a conversion offer because, if the perpetrator believes the kind
is elective, the perpetrator still treats the victim in a way that takes account of his choices. So, when the
mugger shoots her victim without the offer of “your money or your life,” the murder is still not as morally
reprehensible as a genocidal murder because the kind that is the mugger’s reason for the killing results
from the victim’s choices, even if those choices not only do not justify the murder, but were made without
the victim’s having been able to foresee that it could lead to his death.58
Consider the following spectrum of actions where a perpetrator (P) imposes harm (H) against a
victim because the victim is of kind (K), and, if the perpetrator believes the kind to be elective, the
perpetrator believes the victim has made a choice (C) to become a person of that kind (including an
omission, that is, a choice not to abandon the kind that was acquired without choice).
(1) P believes K is nonelective. (Genocidal harm is in this category.)
---------------------------------------------------------------------------------
(2) P believes that K is elective; and C does not justify H. (In this category would be murder by a
mugger or by our hypothetical Spanish persecutor, with or without a conversion offer.)
-----------------------------------------------------------------------------------
(3) P believes that K is elective; and C justifies H. (Justified criminal punishment would be in
this category.59)
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The obvious break of moral relevance is between (2) and (3), between harmings that are justified and
those that are not. Harmings in (3) are morally acceptable, but harmings in (2) are not. But the break
between (1) and (2) is also of moral relevance. It is not a break between the morally acceptable and the
morally unacceptable, but it is a break between the morally better and the morally worse. In (2), the
victim is being treated in a way that takes account of his choices, even if those choices do not justify the
victimization, whereas in (1) this is not the case.
The Spanish persecutor at (2) shows less respect for the victim’s choices than the justified
punisher at (3), but more respect than the Nazi executioner at (1), who shows none. The persecutor kills
for a reason over which he believes the victim had or has control, and this is the case whether or not he in
fact makes a conversion offer. An offer of conversion is an expression of this belief, but the belief can
hold whether or not the offer is made, and the making of the offer would not justify the victimization.
None of the victims deserve to die, but the degree of moral wrong in their killings is different. On this
moral difference hangs the distinction between genocidal and nongenocidal murders.
The break between (1) and (2), like that between (2) and (3), represents morally not just a
difference in degree, but a difference in kind. This difference is marked in the break between (2) and (3)
by whether the action is justified, and it is marked in the break between (1) and (2) by whether the
perpetrator shows any respect for the victim’s choices. Not to show this respect is to treat the person as a
nonperson, given the role of our ability to choose in defining us as persons. This is my interpretation of
Fackenheim’s point about genocidal murderers destroying not only their victims’ lives, but their (internal)
humanity as well. Our internal humanity lies in our power of choice. Murders within categories (2) are
heinous, immoral, and unjustified, but, resulting from what the murderer believes are matters over which
the victim did or could have exercised choice, they are not as reprehensible as genocidal murders. This is
what is morally special about genocide.
VI.
We have in hand an account of genocidal harm that is individualist and emphasizesmens rea. A
genocidal harming occurs when the perpetrator harms the victim because the victim is of a kind that the
perpetrator believes is nonelective. Moreover, this definition shows why genocide is morally special.
Genocide is morally special because its parts, genocidal harms, are morally special, and genocidal harms
are morally special because they show no respect for the victim’s choices, thereby treating the victim as a
being without the power of choice, as a nonperson.
How does my account answer the five questions posed at the beginning? The first three can now
be answered straightforwardly. (1) The kinds that are genocide-eligible are kinds the perpetrators believe
to be nonelective. (2) The chief objects of harm in genocide are individual members of the genocideeligible kind or group. (3) The basic intentions involved in genocide are intentions to harm or murder
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individuals because they are of perceived nonelective kinds. The answer to (5) we saw earlier. Murder is
the paradigmatic genocidal harm, but the other sorts of harms, such as those referred to in the UN
Convention may count as well.
But an answer to (4) requires a definition of genocide based on the individualist notion of
genocidal harm. Because an individualist account takes genocidal harm, rather than genocide, to be the
prior concept, it must explain how the concept of genocide is constructed out of that of genocidal harms.
First, a genocide is composed of a large number of acts of genocidal harm, so there can be acts of
genocidal harm that are not part of a genocide because there are too few of them. Second, because a
genocide is composed of a large number of acts of genocidal harm, it must, in practice, have multiple
perpetrators. Thus, genocide is a collective crime twice over, involving a collective of perpetrators as well
as a collective of victims.60 Third, that genocide involves a collective of perpetrators requires, again in
practice, that it be organized, that it be a matter of policy on the part of an organized group. Fourth, due to
the organizational nature of genocide, some of its perpetrators, such as the organizers, may be guilty of
genocide without imposing genocidal harm on anyone.
Fifth, not all harms that are part of a genocide need be genocidal harms. In this regard, two sorts
of cases are worth mentioning. One, some of those conscripted into participating in a policy of genocide
may harm their victims not because the victims are members of the relevant perceived nonelective kind,
but because the conscriptees are ordered to do so. Two, as mentioned earlier, some participants in a
genocide may be self-deceived into believing falsely that the group membership on the basis of which
they are harming their victims is elective.61 Sixth, one may speak of an intention to commit genocide (in
addition to the intentions involved in the individual inflictions of genocidal harm), but this intention is
constructed, in the sense that it is a function of the organization involved in collective effort and the
individual actions of the participants. The intention resides in the collective organized activity, rather than
needing to exist in the minds of individual participants. It is not unusual in other contexts to ascribe a
constructed intention to an organization when it does not correspond necessarily to an actual intention in
the minds of the participants. (This is not to say that the participants are generally unaware of the plan or
their role in it.) In fact, in the case of genocide, it would seem odd for any of the participants, except
perhaps for the organization leaders, to have an intention to destroy the group. For participants, intending
to commit genocide would be intending something of which they are not individually capable. Individuals
understand that genocide requires multiple participants, and if they have that understanding, it seems, they
would not have the intention to destroy the group, unless perhaps, as leaders, they control the actions of
the other participants.62
Putting these points together, a genocide is an episode in which a number of victims of the same
perceived nonelective kind are subject to genocidal harm by a number of perpetrators more-or-less
formally organized, the constructed intention to destroy the kind residing, exclusively or primarily, in the
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collective effort. Genocide is morally special because it is composed of genocidal harms, and genocidal
harms are morally special because they do not take account of the choices, hence the personhood, of the
victims.63
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NOTES
This phrase is used in the judgment and sentence of the International Criminal Tribunal for Rwanda, as
cited in William Schabas, Genocide in International Law: the Crime of Crimes (Cambridge, UK: Cambridge
University Press, 2000), p. 9.
2
The claim that genocide is morally special should not be confused with the claim that it is morally worse
than any other sort of action or policy. Because I am talking about genocide as a type, some particular
genocides will presumably be morally worse than others, suggesting that some genocides, at least, will not
be morally worse than some very harmful nongenocides.
3
Schabas, Genocide, Introduction.
4
For a philosophical discussion of genocide more fully informed by international law, see chapter 9 of Larry
May, Crimes Against Humanity (Cambridge, UK: Cambridge University Press, 2005), pp. 157-178.
5
The use of the term “eligible” in relation to those groups against which genocide can be committed is
suggested by Berel Lang, “The Evil in Genocide,” in John K. Roth (ed.),Genocide and Human Rights: A
Philosophical Guide (New York: Palgrave Macmillan, 2005), pp. 5-17, at p. 10.
6
I am using the term “kind” in a loose sense, not, for example, in a way that restricts its usage to natural
kinds. By “kind” I mean, roughly, a set of persons that share a certain property, which may be anything at all
that can be said about a person. The kind is specified by the property. I use the terms “kind” and “group”
interchangeably.
7
Douglas Lackey, “Extraordinary Evil or Common Malevolence? Evaluating the Jewish Holocaust,”Journal
of Applied Philosophy 3, no. 2 (1986), pp. 141-155, at p. 161.
8
Quoted in Schabas, Genocide, p. 231.
9
These two aspects of the crime of genocide are discussed in Schabas,Genocide, chapters 4 and 5.
10
Berel Lang, “The Concept of Genocide,” Philosophical Forum 16, nos. 1-2 (Fall-Winter 1984-85), p. 1.
11
“Convention on the Prevention and Punishment of the Crime of Genocide,” reprinted in Schabas,
Genocide, p. 565.
12
Some of the clauses (a) through (e) include mens rea elements of intention, but these elements are separate
from the mens rea of the act of genocide, referred to in the opening paragraph. See May,Crimes Against
Humanity, p. 165.
13
If genocide always involves the imposition of at least some harm, then one might argue that, according to
the Convention, it always succeeds because the stipulated intention is to destroy the group “in whole or in
part.” But it is not clear that some harm imposed on individuals would always amount to partial destruction
of their group. See Shabas, Genocide, pp. 230-240, for a discussion of the Convention phrase “in whole or in
part.”
14
But it would be an attempt that involved some imposition of harm on individuals, not, as in the case of
other sorts of attempts, mere preparation.
15
Lang, “The Evil in Genocide.”
16
Lang, “The Evil of Genocide,” p. 9.
17
Lang, “The Evil of Genocide,” p. 16.
18
Schabas, Genocide, p. 6. He cites an early UN resolution which states that genocide “is a denial of the right
of existence of entire human groups, as homicide is a denial of the right to live of individual human beings.”
19
Lang, “The Evil of Genocide,” p. 10. Lang has it backwards here. We need to be clear that groups can
suffer death before we incorporate this idea into our definition of genocide.
20
Lang, “The Evil in Genocide,” p. 5.
21
Lang, “The Evil in Genocide,” pp. 10-11.
22
Claudia Card, “Genocide and Social Death,” Hypathia 18, no. 1 (Winter 2003), pp. 63-79, at p. 68.
23
Card, “Genocide and Social Death,” p. 72.
24
Card, “Genocide and Social Death,” p. 63.
25
Card, “Genocide and Social Death,” p. 73. She is concerned, in effect, with the destruction of culture, and
she suggests that the term “cultural genocide” is redundant (p. 63).
26
For example, Lang speaks of genocide as involving “a two-fold murder.” See Lang, “The Evil in
Genocide,” p. 9.
27
One might ask here how the sorts of harms that may be genocidal can be distinguished without making
reference to harm to the group, and thereby violating the strictures of an individualist account. The answer
may be found in clause (b) of the UN Convention definition, “causing serious bodily or mental harm to
members of the group.” Any significant harm to individuals may be genocidal.
28
Such cultural disablement is sometimes referred to as “ethnocide” or “cultural genocide.” Schabas
(Genocide, p. 189) claims that these do not fall within the UN Convention, but it is not clear to me that this is
the case, if they result in the end of the group as a group.
29
Including in our examination of the moral import of genocide the effects on those who are not killed
requires a broader understanding of actus reus than is typical, namely, an understanding that encompasses
1
not only the deaths themselves, but also consequences of those deaths, in this case on the surviving members
of the group.
30
Hannah Arendt, Origins of Totalitarianism (New York: Harcourt Brace and World, 1951), p. 447, cited in
Larry May, “How is Humanity Harmed by Genocide?”International Legal Theory 10, no. 1 (Fall 2004), pp.
1-25, at p. 8.
31
Card, “Genocide and Social Death,” p. 73.
32
Comparing those murdered as an end (as in a genocide) with those murdered as a means, Douglas Lackey
asserts that their “loss is the same either way.” “Extraordinary Evil,” p. 145.
33
This distinction is used by Douglas Lackey in his discussion of the Holocaust. He considers whether the
Holocaust is morally special due either to the individual murders involved or the totality of the murders.
“Extraordinary Evil,” p. 141.
34
Lackey, “Extraordinary Evil.” Lackey’s discussion is of the Holocaust, not genocide in general.
35
Lackey, “Extraordinary Evil,” p. 148.
36
Emil Fackenheim, “The Holocaust and Philosophy,”Journal of Philosophy 82, no. 10 (1985), pp. 505-514,
at p. 514.
37
May, “How is Humanity Harmed by Genocide?” p. 19.
38
May, Crimes Against Humanity, p. 82. May suggests how we might understand these two senses to be
connected in his observation that in genocide “some significant characteristic of humanity is harmed, perhaps
by harming it within each member of humanity.” (p. 85)
39
Card, “Genocide and Social Death,” p. 72.
40
Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), p. 200. Walzer is not speaking in
this passage specifically about genocide, but his distinction is the same as that make by commentators on
genocide.
41
Lang, “The Evil of Genocide,” p. 12
42
May, “How is Humanity Harmed by Genocide?” p. 5.
43
Some early drafts of the Convention included political groups as genocide-eligible kinds, but this category
was rejected in the final draft. The drafting process is discussed in Schabas,Genocide, chapters 2 and 3.
44
Schabas, Genocide, p. 132.
45
A group membership is elective by omission when being a member of the group results not from
choosing to join the group, but not choosing to leave it. In such a case, one does not join the group
by choice, because one was, for example, born into it or socialized into it at a young age, but
membership is nonetheless elective because one could have chosen to exit the group but has not.
46
Schabas, Genocide, p. 109.
47
Lang, “The Evil of Genocide,” p. 11.
48
I appreciate an anonymous reviewer’s calling this point to my attention.
49
I would like to thank an anonymous reviewer and an editor of this journal for pointing out the need to
address this issue and suggesting the approach I have taken in response.
50
The phenomenon of self-deception raises a problem for my account here. If perpetrators of genocidal harm
actually believe the falsely absurd claims that would morally justify the harm they impose, then they would
presumably not have the proper mens rea for a genocidal act under a type IV account. I address this problem
in the final section of the paper.
51
This example was raised by an anonymous reviewer.
52
Samantha Power, A Problem from Hell: America and the Age of Genocide(New York: Basic Books, 2002),
pp. xix, 1-16.
53
The only way the indiscriminate murder of genocide could be justified is on a theory of collective liability,
which is a completely implausible normative assumption.
54
I owe this line of criticism to Eric Barnes.
55
Consider this analogy. Someone claims that my definition of “tree” is inadequate because it does not rule
out something eight hundred feet tall being a tree. Surely a tree could not be so tall, they say. But should we
discover something that tall that was like typical trees in all other respects, we would not hesitate to call it a
tree. It is gravity that makes an eight hundred foot tree unlikely, as it is social dynamics that make a shoe-size
genocide unlikely. These are not matters to be included within the definition.
56
“Spain,” Encyclopedia Britannica Online, pp. 110, <http://www.britannica.com/eb/article70387/Spain>, accessed 6/8/2008. The Spanish Inquisition was instituted in the late fifteenth century
largely to prosecute the conversos’ descendents, who were suspected of insincerity in their professed
Christian convictions.
57
Conversions are impossible when the elective group membership cannot be abandoned. For example,
muggers often kill their victims because they fear the victims might become witnesses against them. Being
able to be such a witness is a kind that cannot be abandoned; one cannot choose to forget the mugger’s face.
What if the mugger shoots his victim “for no reason,” that is, the valuables have been handed over, there is
no chance the victim could later recognize the mugger, et cetera? If there is truly no reason, there is no kind,
elective or nonelective, in virtue of which the victim is killed, except, perhaps, being human. But, even then,
this murder could not be genocidal because the kind “being human” is not a subcategory of the human.
59
Herbert Morris argues that punishment is justified because the criminal has a right to be punished, in the
sense that, in choosing to break the law, he is, in effect, choosing to be punished. So, in punishing the
criminal, we are respecting his choices. See his, “Persons and Punishment,”The Monist 52 (1968), pp. 475501.
60
May, Crimes Against Humanity, p. 175.
61
In neither of these cases, of course, would the participants necessarily be excused from responsibility for
their participation.
62
There is another approach, which is to argue that an intention to inflict individual genocidal harm is
equivalent to an intention to destroy the relevant kind. Because the individual intention takes no account of
anything about the victim other than group membership, it is an intention, in effect, to harm anyone
belonging to that group, hence an intention to destroy the group.
63
For help with this paper, I would like to thank Bruce Landesman, Larry May, Frederik Kaufman, Carol
Oberbrunner, Eric Barnes, Scott Brophy, a couple of anonymous reviewers, and the audiences at a 2005
session of International Association for Philosophy of Law and Social Philosophy (IVR) and at a 2006
session of Concerned Philosophers for Peace, where earlier versions of this paper were presented. I would
like to thank especially Douglas Lackey, discussions with whom in the old Yugoslavia, prior to the spate of
genocidal murders and rapes there in the mid-1990s, got me thinking about this issue.
58