Genocidal rights

Published date02 September 2009
Date02 September 2009
AuthorRuth A. Miller
Ruth A. Miller
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
Copyright r2009 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000048009
nature of this relationship. I will suggest, in other words, that rights are
inherently genocidal and that the fundamental right that precedes and
underlies all others is the civil, sovereign, and human right to commit
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 rights and 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 suggesting that 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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