Genocidal rights

• Published date: 02 September 2009
• Date: 02 September 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000048009
• Pages: 147-175
• Author: Ruth A. Miller

GENOCIDAL RIGHTS

Ruth A. Miller

INTRODUCTION

This is an essay that will be misinterpreted. Before I even mention genocidal

rights, I want to make clear what my argument is not. First, my argument is

not that genocide has not happened or does not continue to happen.

Second, I will not suggest that genocide is not a serious crime. Finally, I will

not try to develop a theory of victimhood – to challenge the centrality of the

victim in discussions of genocide. Rather, my interest here will be the

uncomfortably intimate relationship between genocidal violence on the one

hand and the elaboration of civil, sovereign, and human rights on the other.

Situating genocide within a history of rights and rights rhetoric is

certainly nothing new. Indeed, defining genocide as an act of violence

inextricably bound up in national, international, and universal rights

granting has become commonplace in twentieth and twenty-first century

political theory (Arendt, 1968, 1976, p. 279;Foucault, 1976, 2003, pp. 256,

260;Agamben, 1995, 1998, pp. 128–129). When I talk in this essay about

what I will be calling the ‘‘right to commit genocide,’’ I engage with a

tradition of legal and political argument that is at least a half century old.

At the same time, I will try to push this argument a bit further than it has

gone before – or at least draw conclusions from it that may at first glance

seem counterintuitive. First of all, whereas a number of scholars have drawn

attention to the apparently paradoxical relationship between rights-based

political structures and genocidal violence, I will emphasize the foundational

Revisiting Rights

Studies in Law, Politics, and Society, Volume 48, 147–175

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000048009

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nature of this relationship. I will suggest, in other words, thatrights are

inherently genocidal and that the fundamental right that precedes and

underlies all others is the civil, sovereign, and human right to commit

genocide.

Second and related, whereas most theorists see the tension, competition,

or balance among civil, sovereign, and human rights to be both the reason

for genocide and a source of hope for preventing its occurrence, I will argue

that there is in fact no tension or difference among the three and that rights

assume their genocidal character precisely because these divisions are false

ones. My position will thus be quite different from that taken by the legal

scholars during and after the Nuremburg trials who argued that sovereign

rights erode civil rights in the absence of international structures to prevent

such occurrences and that genocide in turn happens (Lemkin, 1947a,

pp. 145–146). It will likewise be different from the position taken by those

who argue that the extension of human rights can balance or curtail the

sovereign and civil rights that, left alone, might lead to genocidal violence

(Ibid.). Rather, I try to argue that all of these rights are identical and that it

is as a result of this absence of difference that acts of genocide continue to

‘‘mock’’ rights-based preventative structures.

Most critiques of the relationship between rightsand genocide, that is,

either fault the ineffective practical implementation of what is perceivedto be

a generally sound theory of rights as remedies or attempt to tweak the theory

in such a way that it no longer leads to genocidal violence – condemning, for

example, the historical linkage between state-based civil rights and human

rights (Arendt, 1968, 1976, pp. 175–177) or suggestingthat human rights

advocates should focus on individual ‘‘humans’’ rather than on humanitar-

ian ‘‘groups’’ (Yovel, 2007, p. 17). My position, on the contrary, is that both

the theory and the practice of rights granting are inherently genocidal and

that every system of rights is preceded by a foundational act of rights-based

genocidal violence.

I emphasize that my purpose in making this case is not to argue that

genocide is unavoidable. Rather, I examine the foundations upon which

systems of rights have been built. If there is an implication to my argument,

therefore, it is neither that genocide is inevitable, nor that states by their

nature will commit genocide. Instead, it is that to the extent that we continue

to speak a language of rights, to the extent that we grant individuals,

peoples, and populations rights, and to the extent we understand genocidal

violence only in terms of rights, genocide will happen with more frequency

and with greater efficacy as time passes. That the twentieth century has been

called both the ‘‘Age of Rights’’ (Kennedy, 2004, p. 278) and the ‘‘Century

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