History and Theory 50 (May 2011), 285-294

Wesleyan University 2011 ISSN: 0018-2656

Between Genocide and Genocide

The Historiographic Perversion. By Marc Nichanian. New York: Columbia University Press, 2009. Pp. 216.
Genocide: A Normative Account. By Larry May. Cambridge, UK, and New York:
Cambridge University Press, 2010. Pp. 296.
ABSTRACT

The two books discussed here join a current pushback against the concept (thus also against
claims for the historical occurrence) of genocide. Nichanian focuses on the Armenian
Aghed (Catastrophe), inferring from his view of that events undeniability that genocide is not a fact (since all facts are deniable). Mays critique assumes that groups dont
reallyobjectivelyexist, as (by contrast) individuals do; thus, genocidegroup murderalso has an as if quality so far as concerns the group victimized. On the one hand,
then, uniqueness and sacralization; on the other hand, reductionism and diffusion. Alas, the
historical and moral claims in defense of both genocide and genocide survive.
Keywords: genocide, genocide, Aghed, Holocaust, group existence, intentions, nominalism, sacralization

A recent pushback against the concept of genocide as a moral, legal, and even historical norm marks the concepts coming of age as well as a shift in its reception.
Issues of minority rights in the first half of the twentieth century beginning even
before the Versailles Treaty and its related international jurisprudence, followed
by the political and social realignments of minority populations in the interwar period and then by the Nazi genocide of the Jews in World War II, converged in the
passage by the U.N. General Assembly in November, 1948 of the Convention on
the Prevention and Punishment of the Crime of Genocide. In the following halfcentury, the concept of genocide achieved a presumptive place in legislative, political, and public discourse, and those force-lines culminated in the 1998 founding of the International Criminal Court, a specific charge to which wasisthe
prosecution and punishment of the crime of genocide. For that Court, as well as
for the several ad hoc International Criminal Tribunals independently established
to investigate specific atrocity sites (for example, the former Yugoslavia and
Rwanda), judicial scrutiny of the crime of genocide is a primary and continuing
purpose.
This progression of the concept of genocide to a normative role in jurisprudence
and public discourse has not, however, been uncontested. In the U.N. itself, before
the Genocide Conventions adoption, the definition of genocide provoked sharp
disagreement, and that basic issue has persisted, intensified by the Conventions

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own spare formulation, with gaps in itambiguity, arbitrariness, even inconsistencyacknowledged by both defenders and critics. Despite such reservations,
the Genocide Convention has been generally deferred to, partly as the seminal
historical statement on genocide, but also for its broadly understood applicability. To be sure, its characterization of particular events has been disputed (as in
accounts of the fate of the Turkish-Armenian populace in 191517), but such
disagreements have focused not on the concept of genocide but on whether a
particular occurrence met the Conventions criteria.
This general acceptance had a number of sources. A principal reason reflected a continuing reaction to the Nazi genocide against the Jews that had been a
strong influence in the Conventions original passage. Beyond that, a number of
large-scale atrocities post-World War II (for example, in Cambodia, Bosnia, and
Rwanda) approximated closely enough the terms of the U.N. Convention to mute
potential challenges. And finally, there has been the sense of an argument faute de
mieux: that attempts to nullify or even to amend the U.N. Convention would open
a Pandoras Box with at least as many problems as those already evident.
This balance has changed recently, however, with a growing number and intensity of objections to genocide. Such objections have varied emphases, although
it should be noted that genocide-denial has virtually no place among them. The
common question they raise is whether purported genocides would be more
adequatelyprecisely, consistently, fullysubsumed under another, probably
broader category (for example, crimes against humanity), or alternately, whether the category of genocide could be preserved, but with substantive revisions.
The two books considered here contribute to this pushback, proposingalbeit
on very different groundsto minimize if not displace the concept of genocide.
Carried to an extreme (that they neither entail nor preclude), genocide, which
entered English (and other languages employing the term or its approximate translation) through Raphael Lemkins 1944 book with the understated title of Axis
Rule in Occupied Europe, appears retroactively, according to them, as an imprecise if understandable term applied to then recent events: now, however, it is an
archaism as vague as aether would be in designating the earths atmosphere.
There is no reason to ignore such criticism. That the concept of genocide is
not self-evident is itself evident in the history of genocide prior to the terms
coining. Lemkin found instances of genocide in the Hebrew Bible and classical
Romearguing for his neologism on the grounds that it answered a still unmet
need in international law to protect otherwise defenseless groups of people within
as well as across national boundaries. Given that purpose, objections to the concept might pose three possible counter-claims: 1) that no such need exists; 2)
that the concept of genocide as previously formulated does not meet the need adequately; or 3) that other legal or moral concepts meet the need more fully and/or
precisely. Neither Marc Nichanian nor Larry May supports the first optionan
important consideration in the logic of their positions, since it at least suggests the
autonomous existence, perhaps also the right to exist, of groups, even if they have
no other national or international standing. To be sure, Nichanian then enters re. Raphael Lemkin, Axis Rule in Occupied Europe (Washington, DC: Carnegie Endowment for
World Peace, 1944).

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strictive stipulations about what can be known or said about groups, at least when
attacked genocidally; and May so strongly qualifies the sense in which groups exist as to raise questions about the consistency between his positive proposals and
his nominalist premises. The problems that I identify here in these critiques of
genocide and genocide do not imply a blanket defense of what they are reacting
against (essentially, the U.N. Conventions formulation and common usage), but
they are, I would claim, relevant and arguably necessary to that defense.
Nichanians book is impelled by the fate of the Armenian populace in Turkey
during the years before and during World War Ian occurrence for which Nichanian insists on the Armenian designation, the Aghed (the Catastrophe) rather
than what he regards as the obscurantist Armenian Genocide. This emphasis
emerged for him from two affairs in France. The first was the 1994 trial in Paris
of the historian Bernard Lewis on charges of negationism: denial of the occurrence of the Armenian genocide. The second was the candidacy in 1999 of the
historian Gilles Veinstein for a position at the Collge de France that provoked
a public controversy (although not legal charges) stemming from his 1994 essay supporting Lewiss position: Veinstein, too, was accused of negationism.
(Although not enforced retroactively, the French parliament in 1998 had formally
declared that the Armenians were victims of genocide.) An array of French intellectuals defended Veinstein, including several with whom Nichanian had felt
intellectual kinship (for example, Vidal-Naquet and Derrida) but with whom he
now took issue. Lewis was found guilty by the French court and fined one franc;
Veinstein was subsequently confirmed in the Collge position by a slim majority
(18-15, with 2 abstentions)but both outcomes left for Nichanian more questions
than they resolved. Indeed, the controversies led him to the conclusion he states at
the beginning of his book and repeats as a refrain: Genocide is not a fact.
What this conclusion means and how Nichanian supports it provide the main
thrust of his book. The Bernard Lewis trial was occasioned by an interview in Le
Monde (November 16, 1993) in which Lewis, avoiding an answer to the question
of why the Turkish government refuses to recognize the Armenian genocide,
maintained that although what occurred was a horrible human tragedy, there
was no serious proof of a decision . . . [by] the Ottoman government regarding
the extermination of the Armenian nation. As Nichanian points out, the guilty
verdict reached by the court itself avoided the issue of negationismof denialfaulting Lewis only for not having adequately presented the elements
contrary to his thesis. (One can only imagine the number of criminal judgments if that criterion were generally applied to historical narratives.)
The grounds for these outcomesor for the Gayssot Law of 1990 on which
they drewcan be disputed, but that is not the basis for Nichanians reaction.
Partly from outrage at any doubt about the nature of Turkish actions against its
Armenian minority, partly as the outcome of a minimal argument, Nichanian concludes that genocide is not a fact, building on what is for him a clear distinction
between fact and interpretation: if one, not the other; if the other, not the one. If
the Agheds occurrence is only a matter of interpretation, then any judgment
on it will be as contestable as it is contradictoryand this, on Nichanians view,
cannot be the case: if anything is real, the Aghed was, is. Why, then, can the

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Aghedor genocide as suchnot be a fact? For Nichanian, the decisive element separating interpretation from fact is the role of intention in the former. And
he (accurately) understands Lewiss argument against ascribing genocide to the
Turkish attacks as based on the claim (valid or not) that no Turkish intention of
genocide has been proven.
But why must any reference to intention go beyond facts? Nichanian views
this claim as self-evident: since intention is a matter of interpretation, it cannot
be factualbecause the account is then open to denial, and at least for the Aghed,
that possibility itself disqualifies the account. The Paris court had its say about
Bernard Lewis, and the French intellectual community had their say about Gilles
Veinsteinbut neither the process nor its outcome did justice to the Aghed. One
might conclude then that the Aghed itself really is a fact: true, undeniable. But of
course, allegations of fact are not undeniable, even without reference to intentions.
What, then, is the status of the Aghed? The one possibility remainingaside from
the power of the court simply to enforce its verdictwould seem to be that the
Aghed is nonpareil, a unique occurrence, beyond reach of disconfirmation and so
also of verification. Nichanian hints here that what is known as the Holocaust
is similarly situated beyond interpretation (or denial)and one might infer
that still other occurrences characterized as genocides may also warrant the same
claim of uniquenessall of them together then precluding a factual account of
the concept of genocide generalized from particular instances.
Nichanian traces his own view of the Aghed largely to evidence of personal
testimony from contemporary Armenian accounts or (taken later) from survivorssome from his family, some from other sources. He hardly mentions the
contentious truth-status of eyewitness testimony, although he is undoubtedly familiar with it, since he also draws on extra-testimonial sources. In any event,
the basis of Nichanians line of argument remains the radical division he posits
between interpretation and fact and the role of intention in the former. He nowhere
considers the extensive legal and philosophical literature on intentiona weighty
omission even if he were to maintain his own positivist view. Intentions remain
for him never facts but interpretations, with the taint this conveys specifically for
the Aghed, more generally for genocideand more generally still, presumably,
wherever intentions are alleged.
Clearly, the U.N. Convention on Genocidewhich Nichanian never cites directlyprescribes the intention to commit genocide as a condition for the act (a
requirement that has been among the Conventions less contested parts, perhaps
because non- or unintentional acts are unlikely to reach the scale of genocide).
Furthermore, there are indeed difficulties in judging intentions insofar as they
are never seen as the acts based on them are. From that benign starting point,
however, Nichanians conclusion lumps together interpretations of intention with
all other interpretations as non-factualin the end misrepresenting not only interpretation, but facts and genocide as well. One implication of Nichanians position
is that any judgment based on circumstantial (inferential) evidence is non-factual;
thus, all charges of premeditated murder would be ruled non-factual since they
presuppose a claim about intention. The only authority for judgments on intentional acts, then, would be that of social powernot evidence or truth. The com-

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mon understanding that inferential legaland moraljudgments have a basis in

evidence that points to and at the facts is not considered.
The outcome of Nichanians discussion is thus an extra- or trans-historical
representation of the Aghedbeyond the reach of historical evidence and interpretation, since counter-claims to those are always possible. Such possibilities
violate, in his view, the significance, in effect the self-evidence, of the Aghed,
thus claiming the status of sacralization not only for it but presumably for any
catastrophe or holocaust that other groups find in their history. Indeed, there
seems no reason to exclude from this trans-historical domain any act in which
intentions figure. But even to remain only with genocide: there have been other
genocides that share common features with the Aghed; also for them, the question
of whether intentions impelled them is at once relevant and open to the test of
evidenceat least as open as is the identity of the groups victimized.
The impossibility in Nichanians terms of any account of genocide (specific or
general) that would warrant moral or legalor historicalconviction seems a
gratuitous price to pay for deference to the Armenian victims on whom Nichanian
focuses or to the victims of other genocides. The implication that nothing is common among events like the Aghed, nothing in their origins or outcomes, structures
or means, to be addressed in the interests of analysis (and prevention or punishment) is prima facie implausible. Yet those claims follow (are they also the intention?) from Nichanians account: a version of the Uniqueness Hypothesis, with
uniqueness extended here to many Uniquenesses (that is, genocides). Lemkins
conceptualization of genocide was designed to forestall just that view, to represent genocide within the range of historical and legal and moral understanding of
events joined by similarly intelligibleand dangerouselements.
Larry Mays critique of the concept of genocide is both more systematic and fruitful. Whether or not one agrees with his positive proposals, he clearly identifies
central issues related to that concept, thus providing a valuable checklist for reconsidering both genocide and genocide. Buta very large butan odd issue unsettles his critique, beginning with the question of whether the phenomenon
of genocide is even possible. Not because of gaps in the received definition, but
because Mays nominalist premise repeatedly asserts that only individuals, not
groups, really exist. And what then, one asks, happens to the genos in genocide?
The nominalist presupposition here formally resembles Nichanians assertion
that genocide is not a fact: both statements have the status of stipulations; both
are critical of the received view of genocide, rejecting in it methodological
elements arguably necessary for any historical analysisand both present their
own versions of the atrocity of genocide without, however, substantiating their
central assumptions. May recognizes his own aporia: How can genocide be a
credible concept if groupsto which genocide refers etymologically as group
murderdo not really exist? (92ff.).
This nominalist premise of Mays has a history, and he cites Ockham and
Hobbes as predecessors who argued against theories of universals that had populated the philosophical world since Plato. But he describes little of the basis for
that conflict, and to assume the one side here without recognizing its alternative

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is in effect to stipulate, not to argue. Yetconsistently or notMay then raises

substantive issues and proposals about genocide and genocide that warrant attention; why he would do this, given his doubts about the status of groups, seems
to call for an explanation rather than a reason.
One of Mays criticisms of the concept of genocide can be quickly set aside
as a straw man. This is his objection to assertions that genocide is the worst of
crimes (for example, 4, 65, 78, 134)since, he argues, certain other crimes are
no less heinous. The claim criticized has certainly appeared in public discourse
and in some legal findings, and Mays counter-claim is arguable, but neither of
these points bears on the concept of genocide itself. The U.N. Convention on
Genocide to which May refers repeatedly never cites genocide as worse than
other crimes, let alone as the worst; its definition of genocide does not mention
other crimes at all. Legal codes that mandate punishments for specific crimes do
reflect the alleged severity of those crimes, but such references, when they appear, are not intrinsic to the crimes definition. In any event, the U.N. Convention
includes no prescriptive punishment. Is genocide the worst of crimes? Perhaps,
perhaps notbut whether and how genocide is distinguishable as a crime at all is
the Conventions principal, arguably its exclusive, concern.
Mays metaphysical nominalism, on the other hand, has substantive implications for the concept of genocide, and although at times he qualifies this commitment, it remains the key to his effort to limit the concept of genocide, with the
basic line of argument clear: If groups dont really exist, allegations of group
murder are factitious. Indeed, the nominalist view of any aspect of group-identity asserts its reducibility to features of individuals (thus, for example, the nominalist view of group rightsimmediately relevant to genocideas entirely
functions of individual rights). But May ignores the arguments that have been
given for group reality (and rights); his effort at a normative understanding of genocide and genocide appears then as if (a phrase he himself uses) its
referencegroupswere real, in effect suspending (if only for the moment) the
claims of nominalism.
Mays critique addresses four main problems in the received concept of genocide: (1) how to identify the groups subject to genocide; (2) what actions suffice
for the charge of genocide; (3) what forms of intention (mens rea) genocide presupposes and how such intentions can be determined; and (4) what the justifiable
and/or obligatory responses to genocide are.
(1) The question of which groups count as possible victims of genocide was
contentious in the drafting of the U.N. Convention and has recurred since. The
Convention itself settled on four groups: national, ethnical, racial, and religious,
with the exclusion of political groups a particularly heated issue. The Convention
does not give reasons for singling out the four groups named, but discussions at
the time shape Mays account: the (superficially) involuntary character of mem. For whatever weight one attaches to it, a recent poll that received 931 responses from professional philosophers in the United States had asked them, on the question of the existence of abstract
objects, whether they accept or lean toward Platonism or nominalism. Their responses favored
Platonism over nominalism by 39.3% to 37.7%, with 22.9% preferring an unspecified Other.
(http://philpapers.org/surveys/results.pl [accessed February 10, 2011].)

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bership in those groups together with the fact that those groups had predominantly
been victims of alleged genocides previously. May quickly objects to the first of
these, citing voluntary means to membership in them all except for race (he might
have included the latter as well, inasmuch as the category of race, now viewed
as problematic biologically, also appears then as constructed and in that sense
voluntary).
The most basic and plausible reason for naming the four groups, however, is
explicitly rejected by May: the relative importance of those groups in shaping cultural and individual identities. For he explicitly denies not only intrinsic but even
historical differences in the roles of different group structures, asserting that no
particular groups are more important than any others. The argument thus builds:
since group membership for all persons may draw on the full range of human
possibilities, to privilege certain groups (as the U.N. Convention does) must
be arbitrary. Essentially all groups are equalmore precisely, they are all equally
inessential. And since (this is a separate point) an indefinitely large number of
groups are available to fill any empty cultural space (including those that have
been made empty), the disappearance of any particular source of group identity
hardly matters.
This is a large, provocative, and apparently empirical claimfor which, however, May provides little evidence. Quite apart from this, the U.N. Convention
itself does not stipulate that additional groups (political parties, economic classes)
could not join the four listed, based on their past or predicted importanceand
although Mays insistence that all groups are equal means that he could not consistently add to the list, he does propose other amendments to the Convention
(109-111), mainly in the types of acts that should count as genocidal (for example, prohibiting the use of the language of the group in daily intercourse or
in schools). Such amendments, however constructive in themselves, continue to
be shadowed by the claim that all groups are equal in social significance (if so,
why should the linguistic aspect of culture be singled out?) and easily replaceableand here, it seems, history should have a voice: why is it necessary for the
Genocide Convention to anticipate potential genocides against members of bridge
clubs, bicyclists, dentists, or redheads (important as those identifying marks may
be to some persons) in order to protect members of the groups named in the Genocide Convention? A premise of the Convention is that some group-structures have
at least historically been more important than others, and that this would be a
reason for protecting them. Should others be added to the list? The case needs to
be made. Ockhams razor would seem a useful instrument here.
(2) The question about the specific character of genocidal actions is unavoidable if they are to be distinguished from other types of murder, most relevantly
from mass murder, which may also involve the killing of many individuals sharing
certain qualities. Mays reasoning here moves in two different but complementary
directions. On the one hand, since groups derive whatever moral standing they
have from the individuals composing them (52ff.), then genocide is a wrong because it kills individuals who are incidentally group members. But if genocide
has no intrinsic relation to the group-identity of those killed, to represent it as a
distinguishable crime seems gratuitous. On the other hand, even if one ascribes a

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measure of reality to groups, with genocide then threatening the group structure,
Mays stipulations that no one group is more important than any other and that
replacement groups are always available implies little loss in the destruction of
any particular group-structure. No harm, no fouland thus again: why single out
genocide?
May pulls back somewhat from the latter implication in recognizing that for
survivors of a genocide (since genocide may be charged even if not all members
of the group are destroyed), the erasure of their group-identitys source may be a
harm that is not easily repaired. Even here, however, the harm suffered is the
experience of individual survivors, not the destruction of the group-identity as
such. Furthermore, even the harm admitted is not Claudia Cards conclusive social death, because there is still the assumed likelihood of a successor social life.
(The implausible implication follows that if all members of a group were killed,
the group-harm suffered would be less than if only some members weresince
in the former case, no survivors would be left to suffer the loss of what the groupstructure had given them.)
What exactly is the harm that might be suffered? May comes close here to
conceding that the harm is a disrupted sense of identity caused by being cut off
from the cultural (group) norms (87)a slight wedge in the argument that has,
however, large consequences. For if individual identity is even minimally dependent on group consciousness, the latter would have a measure of reality that the
individual alone does not. And that claim is the crux of views opposed to Mays
nominalismon the grounds that the self is a social self, with the individual as
dependent on the group as the group is on the individual. Indeed, if any premise
underlies the U.N. Convention on Genocide, it is that the murder of a groupstructure is both a purpose of genocide and a loss suffered when that purpose is
realized. Genocide may but need not involve physical murder, a condition that
May recognizes without admitting its implications; it can be committed, for example, by the prevention of births within a group or by the forced assimilation of
the groups children into other populations (Articles 2d and2e). The harms that
the latter inflict are not to the living (in the first instance) but to potential future
lives that are denied the then-vanished culture (in both instances): basically, in the
destruction of the group-identity as such, which is clearly the sticking point for
May who is able to write: It is very unclear what precisely the harm is when a
group is lost. . . . With the loss of one group, it does not follow that there is even
one less group in the world (64). To be sure, the counter-claim to this requires
substantiation itself, but Mays account does not recognize even an issue here.
This is not the context in which to argue for a social self or (contra May) the
reality of groups. The institution of language remains an example of a group creation and consciousness irreducible to individual awareness (or individual characteristics [52], as May insists); in terms of group rights, the right of national
self-determinationlike the right to existence violated by genocidecannot be
ascribed to or exercised by an individual. These are the sorts of issues facing
nominalism when it confronts the complex phenomenon and consequences of
human culture.

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(3) May addresses the pivotal issue of intention for Nichanians critique more
systematically and usefully. One of his concerns here is the nature of collective
intentions on which nominalisms unsurprising position is that the concept is a
metaphor for bundled or shared (128) individual intentions: Collectivities . . .
are fictions (37). For individual intentions, he finds no such difficulty, in effect
endorsing the Genocide Conventions provision for individual responsibility once
individual intention is determined. A knottier problem is the Conventions stipulation that genocidal intention would be directed against the group as such. Mays
reading here interprets the latter phrase as signifying some sort of vague discriminatory animus motivating the crime (144). It would be difficult (with or without the
phrase) to imagine the act of genocide in the absence of some sort of animus, and
it may well be that as such adds little to what the Convention otherwise proposes
on intention. But a simpler explanation of its presence would be as underscoring
the genocidal intention to destroy the group as distinguishable from its individual
members (who may or may not be intentionally destroyed). But again, this reading
conflicts with Mays view of the target of genocide as individuals who are incidentally members of a group (thus again the negligible loss incurred in the destruction
of any group).
(4) Mays analysis of justifiable and/or obligatory responses to genocide is the
more important because that topic has been slighted in discussions of genocide.
An obvious reason for such silence is the reluctance of governments to accept
an obligation to intervene in foreign affairs not involving their own citizens, and
indeed May is himself more comfortable with justifiable than with obligatory intervention, citing the tradition of just war doctrine as a basis for the former and
as a necessary (and itself a difficult) condition. But justification does not entail
obligation, and May stops short hereas also on the related question of what
means would be entailed if such an obligation were recognized. But the latter
questionobligatory intervention by whom and howis no less urgent than the
other. Indeed, as communications in real time detail ongoing events definable
as genocide with the possibility that intervention could impede or halt them, this
urgency is intensified. (The U.N. Convention itself, pointed to the prevention and
punishment of genocide, does not mention intervention at all. Indeed, the only
means it suggests for prevention is that genocide would be a punishable crime;
but punishment as a deterrent has an uneven history and is at any rate no substitute
for intervention when a crime is being committed.) May points to the practical difficulties of substantiating a charge of genocide when it is ongoing, but this seems
only to underscore the need for provision in the account of genocide that would
both mandate intervention and indicate a mechanism for doing so: willing the end
requires also willing the means. This added emphasis would not be incompatible
with Mays analysis of the justification for intervention, but it would give weight
beyond that to the complex character of genocide.
That the two books discussed push back against what has served as a standard
view of genocide is not distinctive, but the two are representative of this reaction,
and Mays book adds a useful systematic outline of issues confronting genocide (and genocide) if they are to be a foundation for legal, ethical, and his-

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torical norms. Nichanians move toward a sacralization of genocidethrough

the perplexities he finds in responses to the Armenian Aghedwould leave that
event (and arguably others) as trans-historical, beyond the reach of explanation or
verification. This has ample precedent in uniqueness claims related to the Holocaust, and the problems it raises are similar. Few advocates of this view argue that
historical analysis is entirely irrelevant to understanding the events at issue, and
allowing even that small opening entails a larger historiographical progression in
which the move toward sacralization loses much of its force and all of its necessity. Mays more systematic account assumes a methodological and metaphysical
foundation that is debatable in ways he does not address, although at the same
time pointing to key questions requiring scrutiny in any substantive analysis of
genocide and/or genocide. The question of What is to be done? thus remains
both in and after these accounts.
Berel Lang
Wesleyan University