On the genocide concept

I

Product of some two decades of scholarship, The Problems of Genocide is at once a synthesis of a vibrant field, and a carefully argued rejection of its key principles – or dogmas, if we are to follow Moses’ religious vernacular. The book is in many ways a testament to Moses’ key role in fostering a new generation of critical genocide scholars: he has edited the Journal of Genocide Studies since 2011 and published nearly a dozen edited volumes. Yet the new book has sparked substantial controversy. Part of this emerged from Moses’ publication in March 2021 of an article entitled ‘The German Catechism’, in the Swiss online journal History of the Present (Moses, 2021b). Here, Moses argued that official state forms of Holocaust memory in Germany had reached such a hegemonic level as to silence debate on other troublesome pasts. Since German Intellectuals and the Nazi Past, Moses’ (2007) book based on his doctoral thesis, he has interrogated assumptions that the Holocaust was central to the birth of a ‘healthy democratic culture’ in post-war Germany. What was in the 1980s a progressive demand to account for the crimes of the past became a ‘political theology’ in later decades, used by conservatives to silence debate on German colonialism, racism within its borders, and the Israel-Palestine question.

Many academics engaged with this provocation in good faith, but condemnation from the German press was swift. Reactions to this article became enwrapped in a broader debate around Problems, with some accusing Moses of taking the contextualism of the Cambridge school too far. Critics posited that Moses had transformed the concept of genocide, coined by Raphael Lemkin in the early 1940s, into a ‘Jewish-Zionist plot’ (Stone, 2022). Partly owing to what one commentator described as his ‘Arendt-inspired tone that seemed designed to enrage’, Moses’ book has been selectively read via the concerns and predilections of the present. This is unfortunate, given the work’s substantial sweep from the 16th century to the present. Even if one might disagree with sections of his argument, Moses' intervention constitutes a significant and important re-reading of not only the history of genocide but human rights, colonialism and the Western-led global order itself. Building on the work of critical historians of empire and humanitarianism, Moses contends that rather than criminalising mass murder, the effect of the genocide concept has been to legitimate it.

II

Only weeks before Moses’ excoriation of Germany’s lopsided Holocaust memory culture appeared in History of the Present, Human Rights Watch (2021) made a dramatic intervention into one of the modern world’s most protracted conflicts. In a report subtitled ‘a threshold crossed’, the US-based organisation applied a label to the practices of Israel in its occupied territories that had deep historical resonance: apartheid. Translated as ‘separateness’ from Afrikaans, the term became embedded in international law via the 1974 UN Convention on the Suppression and Punishment of the Crime of Apartheid, and Israeli sources quickly dubbed the report an example of antisemitism. Terminology is important here. HRW may indeed be guilty of antisemitism, if one were to follow the definition offered by the International Holocaust Remembrance Alliance (2022), which includes describing the ‘State of Israel as a racist endeavour’ as an act which ‘den[ies] the Jewish people their right to self-determination’. Much has been written to highlight holes in HRW’s definition of apartheid. Yet, perhaps most importantly for our purposes, is HRW’s insistence that Israel had ‘crossed…a threshold’ in its inferior treatment of Palestinian Arabs under its rule. For Moses, such language fits within a centuries-old tradition he dubs ‘the language of transgression’ – whereby Western actors have utilised languages of shared humanity and moral boundaries to critique the practices of governments, empires and corporations.

One of Moses’ key interventions in this book is to historicise the practice of utilising moral opprobrium as a tool to question governmental – and primarily colonial – policies, which he argues was captured and neutered by the genocide concept. The concept of a threshold is central in this, and in Problems we find that its origins lie in critics of Spanish colonialism in the so-called ‘new world’. Even at this early period of colonialism, now familiar refrains of European ‘gentleness and humanity’ were counterposed to the ‘Amerindians scandalous violations of natural law’, and the historic role of Spain as civiliser and saviour. Moses highlights the significance, then, of an intervention by Catholic priest Bartolomé de las Casas, who’s 1551 book ‘inverted the image of civilized Europeans who followed the laws of nature and barbarians who violated them’, working to ‘shock the Spanish ruling class to reform its new American holdings’ (Moses, 2021a: 54). This is a well-known case, but Moses’ contribution by beginning here is not to locate the origin of humanitarian sentiment – which has roots in the Roman era – but the beginnings of a lexical tradition which drew distinctions between legitimate and illegitimate violence and invoked state power to challenge the latter. As Moses puts it: ‘The language of transgression thus highlighted some systems of exploitation while condoning actions and processes that fell below Las Casas’s threshold of shocking: they were acceptable forms of exploitation’ (Moses, 2021a: 60).

Las Casas’ protest against the excesses of Spanish colonial rule targeted entrepreneurs and exploiters, imploring the king to impose imperial law and order in the name of humanity. If that sounds familiar, it is because almost the same language has been used by humanitarians who critiqued empire across the next five centuries. Moses utilises this insight to undertake a fascinating re-reading of the Western canon. He identifies how the language of transgression became one of empire, at the centre of which was a rhetoric of ‘protection’. Equally, it became less the preserve of non-government agitators and more a tool of inter-imperial contestation. Established powers – Britain and France in particular – described the acts of lesser powers, or non-state actors like the East India Company and slave traders, as violating ‘the conscience of humanity’. This language of protection itself had by the 19th century become focused on ‘small nations’ – most famously in the case of European designs on the Ottoman Empire. The Armenian case is particularly evocative here. Western advocates in the late 19th century described Armenia as a ‘victim nation’ subject to Turkish aggression, while the latter’s claim to be countering ‘widespread sedition’ amongst the minority group was dismissed out of hand (Moses, 2021a: 83–4). The campaign of extermination during the First World War saw the Allied powers accuse the Ottoman government of ‘new crimes…against humanity and civilisation’ – the first recorded instance of that term’s use in a diplomatic communication.

The Ottoman outrages were particularly formative for Lemkin, who claims in his memoir that Armenia set him on the course towards defining genocide. The early decades of the 20th century also saw an even greater ‘tethering of the language of transgression to power’ (Moses, 2021a: 118), with its language used to justify the creation of an international humanitarian infrastructure as part of the League of Nations. Unsurprisingly, German attempts to use the very same language to condemn the victorious allied powers – highlighting in particular colonial crimes in Australia – came to little. Instead, Germany and Turkey, through their crimes against the Armenians, the Herero people of Southwest Africa and much else besides, were found to have demonstrated a lack of ‘sensitiv[ity] to the rights of weaker nations’, as American philosopher John M. Mecklin put it. German actions in particular demonstrated an inability to exercise the type of ostensibly benign tutelage practised by Britain, France and, Mecklin envisaged, an ascendant American power. The language of transgression became a key conceptual buttress to the League’s Mandates Commission, whereby former German colonies were brought under neo-colonial administration by her rivals. Mecklin hoped the Commission would prove to be a ‘conscience of the world’ (Moses, 2021a: 120).

Lemkin inherited this long-standing vernacular and, Moses argues, completed its assimilation into the language of power through his work on the Genocide Convention. Yet, part of Problems’ contribution is also to challenge the novelty of the Polish lawyer’s innovation: he was but one articulator of many who, like Mecklin, saw a future where morality and protection would govern world affairs. Attempts to ban aggressive wars and mass violence in fact proliferated in the interwar, perhaps most famously the Kellogg-Briand pact. Within this legal tumult, Moses gives particular attention to another Jewish lawyer, the Russian Andre Mandelstam, who ‘remains virtually unknown despite proposing human rights protections well before Lemkin proposed such measures’ (Moses, 2021a: 156–7). What Lemkin added to the mix was a small state nationalism inspired, Moses contends, by his Zionist politics, ‘linking the fate of Jewish and non-Jewish victims of Nazi occupation under the rubric of “genocide”’ (Moses, 2021a: 203).

Lemkin’s culturalist understanding of nationalism posited that each ‘people’ needed their own state, an idea which chimed with leaders of small states in the incipient UN – particularly in South America, but also those who had been subject to Nazi aggression and occupation in East and Central Europe. The success of the Genocide Convention, never a foregone conclusion, then relied on Lemkin’s ability to ‘market a grand simplification of points others were making’ (Moses, 2021a: 177). In order to do that, however, Lemkin had to remove much of the substance of the earlier legal thought he drew upon – indeed, even his own deeply historical awareness of genocide. In so doing, a definition was created which, while redolent with the language of violation and ‘shocking the conscience of mankind’, excluded the ‘liberal’ permanent security perpetrated by nation-states ordinarily seen as behaving as good global citizens.

III

The publication of Keith Windschuttle’s (2002) The Fabrication of Aboriginal History sparked a ‘history war’ in Australia, aided by the work’s championing by then prime minister John Howard. Windschuttle accused eminent historians of inventing, oversimplifying or distorting facts. Fabrication’s primary case study, of Van Diemen’s Land (modern-day Tasmania) in the first half of the 19th century, alleged that British forces had not mounted a planned campaign of extermination but instead took legitimate actions against law breakers (Moses, 2003). At the time, Moses identified in several of Windschuttle’s arguments the basis of what in Problems he defines as liberal permanent security. Windschuttle argued that violence was ‘incidental rather than intrinsic’ to colonial Tasmania by ‘redefining the concept of massacres into meaninglessness’, cast resistance to invasion as ‘law breaking’, and finally, engaged in victim blaming: any violence committed by the British was motivated by a need to ‘defend themselves’. The Indigenous victims of British aggression were, under this reading of their actions, criminals, and as such outside of politics, while violence undertaken against them was viewed as measured and reasonable under the logic of the existing legal system. Moses argues that a desire to defend actions such as these – to bracket off genocide from the everyday crimes of settler colonialism and inter-state warfare – was central to the design of that term in the 1940s.

Lemkin, who passed away in relative obscurity in 1959, was regularly invoked in Australian debates of the 2000s. As part of Lemkin’s planned but never realised 40 chapter history of genocide, he had penned a draft chapter on Tasmania (Curthoys, 2005). This case was particularly powerful for Lemkin, as it showed the ways that individual and governmental responsibility for genocide were related, and how the removal of children could be ‘a way of destroying a human group’, one that was ‘especially evident in the Tasmanian case’ (Curthoys, 2005: 168–9). The existence of liberal permanent security measures necessitated an illiberal counterpart, and it is here that Moses connects the two key thrusts of his book: the language of transgression, he argues, created acceptable and unacceptable forms of colonial violence. In Chapter 6, Problems characterises permanent security as being associated with an idea of collective guilt (that all members of a particular group are responsible for the actions of a few), pre-emption (that potential future crimes must be averted by taking measures today), and a sense of paranoia fired by shared (often imagined) historical grievances.

Moses carefully links the rise of this defensive, exterminatory way of thinking with the governing of foreign peoples. While reaching back to the Roman destruction of Carthage, conducted so as to permanently remove a potential opponent, exterminism is of course particularly prominent in colonial and settler societies. As Patrick Wolfe (2006: 388) argued, the ‘extermination of the native’ was a pre-condition of the settler desire to ‘come to stay’. ‘Permanent security is signalled by the language of final solutions’, Moses argues, something he observes in massacres in Australia, population removals in Anatolia, and the ‘liquidation’ of Kulaks in Russia. And, in a chapter pivotal to Moses’ argument, the claim is made that this was replicated in the practices of Nazi Germany, which aimed to ‘make Germans great and safe again – for a thousand years’ (Moses, 2021a: 277). By casting the Third Reich as an example of illiberal permanent security, Moses builds on a wealth of scholarship on the Nazi ‘empire’ and its colonial practices. Yet, Problems identifies a lacuna in this literature: was the destruction of the Jews not superfluous to the broader imperial agenda? Given the irrational degree to which that goal was pursued, could by anything but driven apolitical hatred? What links German colonial expansionism prior to the First World War and the Nazi desire to create a new empire in Eastern Europe was what Problems describes as an ‘imperial imaginary’ that energised Hitler, with Moses detailing the influence of both British and Mongol empires on key Nazi leaders.

Hitler repurposed long-circulating ideas of the need for German Empire, particularly as expressed by pan-Germanist thinkers, into an ideology framed by two seemingly contradictory sentiments. Germany’s destiny, so this thinking went, was to occupy and exploit Slavic lands on a settler-colonial model, yet at the same time Germany itself was undergoing colonisation by Jews. That these views are not politically rational is beside the point for Moses, who argues ‘the stories that imperialists tell themselves are centrally important – especially if they are paranoid’ (Moses, 2021a: 304). Problems contends that we must take Nazi leaders at their word, even if they were driven by crude conspiracy theories and buttressed by concocted ‘evidence’. They, like many other Europeans at the time, and in our own time via the alt-right mythology of a ‘great replacement’, feared an international Jewish conspiracy. This helps to explain the incongruity of a statement like that delivered by Otto Ohlendorf, leader of Einsatzgruppe 4, that he killed some 80,000 Jewish men, women and children so as to deliver ‘an immediate and permanent security of our own realm’. The killing of children made sense in this context, as ‘children would grow up and surely…constitute a danger no smaller than that of the parents’ (Moses, 2021a: 323–4). Following this logic, the killing of Jewish children in Germany and the removal of Indigenous ones in Australia – whether to eliminate a future threat or to ‘breed out the colour’ – can be plotted along a continuum of eliminationist assumptions.

The synchronicity of Nazi practices with those of a longer colonial project was equally apparent, Moses contends, at the end of the Second World War, which saw a rush of genocidal projects in the name of human rights. Drawing on perceived lessons of the League of Nations mandate system as to the dangers of and to minority populations in nation-states, population transfer was committed ‘not in contravention of human rights’, but instead ‘in the name of establishing a new order based on the “rights of man” and what now is called genocide prevention’ (Moses, 2021a: 334). Population movements at the time of Indian independence into majority Hindu and Muslim states, at the cost of a million lives, the expulsion of hundreds of thousands of Palestinian Arabs from modern Israel, and the cleansing of ethnic Germans from Eastern Europe were not acts of genocide but reflected ‘Lemkin’s ontology of humanity as first and foremost comprising ethnic nations’ (Moses, 2021a: 392). Similarly non-genocidal was the use of forced displacement as a part of ‘counterinsurgency’ warfare that raged across the decolonising world in the 1950s and 1960s. Moses highlights how critics of the Vietnam War tried in vain to invoke the charge of genocide to their cause, thinking in particular of the ‘strategic hamlets’ into which Indochinese peasants were displaced to deny the communist enemy succour (Moses, 2021a: Chapter 10). They failed, Problems contends, due to the increasingly rarefied definition of genocide itself, and the centrality of the Holocaust to its academic proponents.

IV

Reinhart Koselleck (1989: 310), student of Heidegger and Schmidt, survivor of a Stalinist labour camp and purveyor of conceptual history, described in 1989 the inseparability of social life from the ideas which animate it:

Without searching for social formations together with their concepts, by virtue of which – reflectively or self-reflectively – they determine and resolve their challenges, there is no history, it cannot be experienced, interpreted, represented or explained.

The final two chapters of Problems make a similar case for genocide by following the career of genocide studies, from its germination in 1978 (a year that Moyn also highlights as central to human rights) to its explosion in the 1990s. Key scholars in that field reframed genocide as, in the words of founding figure Israel W. Charny, ‘the mass killing of substantial numbers of human beings, when not in the course of military action against the military forces of an avowed enemy, under conditions of the essential defenselessness and helplessness of the victims’ (Moses 2021a: 451). Genocide, then, was a crime of targeting people who had no hope of defending themselves: excluding colonial violence at the end of empire, civil conflicts in the third world and, by the 21st century, crimes associated with the US-led war on terror. This was not, Moses contends, a recent distortion of the genocide concept, but one central to its making, and the ‘language of transgression’ from which it emerged. Moses concludes by discussing how the language of transgression’s creation of illiberal and liberal forms of permanent security impacts our world today. Genocide, so rarefied, is a nearly impossible charge to prove legally. The necessity of a purely evil perpetrator and morally upright, undeserving victim places contemporary movements in a nearly impossible bind, forcing them into a supine position in Western morality plays.

Does Moses’ intention of replacing the crime of genocide with a broader one of permanent security offer deliverance from the former’s manifold problems? Those critics who have highlighted that the term is unlikely to work in a legal context possibly miss the point: Problems in the end asks us to consider the limits of what political language can achieve. Koselleck was also very aware of this dimension of history: language both precedes historical events and can never fully capture their meaning. Those Indigenous peoples who petitioned the UN in 1970 seemed aware of this problem, asking that the Australian government by judged ‘by what it does, not by what it says’ (Department of External Affairs, 1970). In the end, Moses’ contribution is to highlight the political construction of terms and concepts we take for granted, not merely to recognise the power of language but to remind us that it can be reconstructed anew.