This chapter explores the relationship between Holocaust and genocide, beginning with the the emergence of the concept of genocide and its relationship to prior law on war crimes. The chapter offers a close examination of Lemkin’s evolving thinking, and that of other contemporaries on the relationship between the Jewish experience under Nazism and other mass atrocities. It argues that Lemkin’s genocide concept blurred some critical distinctions, notably whether genocide necessarily implied biological extermination. This ambiguity was, however, critical to its political utility in the early postwar context, but the resulting law and terminology has become a political weapon, often obscuring the reality of the violence it purports to describe.

We almost cannot think today about mass atrocities without Holocaust references. Holocaust analogies frame and enflame our ethical debates. Holocaust words dominate our humanitarian lexicon. Yet the deep linkage between the Holocaust and global justice is accompanied by a marked crisis of confidence in international law. Many question whether global legal institutions can ever prevent and properly punish atrocity crimes. The more we invoke the Holocaust, it seems, the less certain we become about the legal world built in its name. This chapter traces this development, from the first discussions of what would come to be called “genocide” in the 1930s, through private litigation geared toward restorative justice. Each legal mode of dealing with the Holocaust has served as a model for how to approach other atrocities, and each has been unavoidably politicized, despite law’s promise to depoliticize the response to political crimes.

Genocide has a way of imposing silence. Part of its purpose is to erase history, and human voices. This series of three volumes aims to contribute to breaking the silence that so often follows genocidal outbreaks. These volumes attempt to document and understand this global phenomenon. The term “genocide,” as a way of describing the “practice of extermination of nations and ethnic groups,” was coined in 1943, when Raphael Lemkin (1900-1959) penned the preface to his 1944 book Axis Rule in Occupied Europe. Five years later the United Nations General Assembly unanimously adopted the Genocide Convention. But Lemkin considered genocide to have much older roots. He had set about writing – but did not complete before his death – a three-volume history of genocide from ancient times, in which he argued that the phenomenon had “followed humanity throughout history.”

The academic and popular fixation on Raphael Lemkin confuses biography with historical explanation of the genocide concept. An actual intellectual history of genocide needs to attend to his context rather than rely on his misleading autobiography, Totally Unofficial. His conception of humanity as comprising distinct nationalities did not originate in the liberal cosmopolitanism he postulated upon arriving in the USA, but in a lifelong Zionist commitment to Jewish statehood in Palestine. Similarly, Lemkin couched his appeal to end genocide not in terms of abstract human rights, let alone crimes against humanity, but in relation to an ideal of world civilization whose constituent parts were national, religious, and racial groups. His fixation on such groups and “small nations” led him to ignore the category of “the civilian” and other forms of civilian destruction, such as interwar debate about aerial bombing on cities. In doing so, he contributed to the depoliticization of the language of transgression.

The instalment of genocide as the “crime of crimes” marked a turning point in the centuries-old language of transgression: now only mass criminality motivated by race-hatred that resembled its archetype, the Holocaust, shocked the “conscience of mankind.” This depoliticization had momentous consequences for the visibility of permanent security. Now only illiberal permanent security – embodied by the Axis powers that disgraced themselves in the Second World War – counted as seriously criminal. Practices of liberal permanent security were not so shocking, notwithstanding the postwar peace movement’s attempt to link Auschwitz and Hiroshima. The most dramatic decades are mid-1960s to the early 1980s when scholars and activists who excoriated the US bombing and counterinsurgency strategy in Vietnam, and its nuclear weapons program. At issue were the notions of “national security” and “military necessity,” the watchwords of the juggernaut they called the US “national security state.”