In March 1945, the German jurist Gustav Radbruch resumed writing his memoirs. Radbruch, who had served as minister of justice under successive Social Democratic governments during the Weimar Republic, was forced from his chair at Heidelberg University with the rise of National Socialism. Now, in the closing weeks of World War II, Radbruch linked the course of his life to a series of events that had transformed European society during the late nineteenth and early twentieth centuries. He started by citing various technological breakthroughs achieved in his lifetime. He then noted the promise those inventions had seemed to hold out—a promise that had, by 1945, proved false:
The greatest technological development for myself and my contemporaries was the conquest of the air through the human spirit. I remember seeing tears fill the eyes of those who caught their first glimpse of a Zeppelin from the Neue Brücke in Heidelberg. On that day, no one could have guessed that this invention and others like it would not make men better or happier, but would instead lead towards the destruction of mankind.1
Today, Radbruch is remembered chiefly for his contributions to legal philosophy, particularly his critique of the doctrine known as legal positivism. “Positivistic legal thinking,” he argued in a 1946 essay, had “prevailed for decades among German jurists, without real opposition.”2 Summarized by the slogan “law is law,” this doctrine denied legal officials the right to seek guidance for their decisions from an ideal of justice independent of, and superior to, enacted laws.3 Beguiled by positivism, Radbruch contended, German lawyers and judges had acceded to the wicked policies of National Socialism. They had thus enabled the acts and policies that the Nuremberg Tribunal would soon condemn as crimes against humanity.
Radbruch’s critique of positivism has long fueled debates among lawyers and philosophers about the relationship between law and morality. One typical way of framing these debates is to ask whether there could be an “exterminatory legality”—a scenario in which officials carry out atrocities exclusively by means of duly enacted laws.4 This might seem to be an empirical question. But the jurisprudential debates to date have focused mainly on conceptual claims about the nature of law and legal systems. Some theorists, such as the American legal scholar Lon Fuller, believe that defining features of law render an exterminatory legality impossible.5 Other theorists, such as the English legal philosopher H. L. A. Hart, hold that no decisive protections against state-sponsored crimes can be found in the concept of law itself.6 The best safeguard against “wicked legal systems,” Hart argues, is to admit their possibility and oppose their emergence.7
In this chapter, I aim to show how legal norms contribute to the explanation of genocide and other kinds of mass atrocity. My discussion is informed by Gustav Radbruch’s jurisprudential legacy; however, I depart from Radbruch’s example in the questions I ask and the resources I use to answer them. Whereas Radbruch asked what World War II–era mass atrocities could tell us about the foundations of law, I ask what law can tell us about the foundations of mass atrocities. Whereas Hart and Fuller used “fables” and thought experiments to support their arguments, I will be concerned with tracing specific laws and legal institutions that have facilitated historical large-scale crimes.
My thesis is twofold. I first argue that legal norms are integral to the etiology of large-scale crimes. Legal norms create social categories, legitimate discriminatory policies, and restrict the spread of knowledge about persecution and violence. The power of legal norms to produce these effects is rooted in the features that distinguish them from moral and social norms. I then argue that legal norms stand as crucial sources of evidence about large-scale crimes. This evidence consists not just of the laws themselves, codified in statutes or secret decrees, but also in the troves of documents produced by the institutions tasked with implementing them. Both the special place of legal norms in the etiology of large-scale crimes and their status as key sources of evidence concerning such crimes render these norms integral to the explanation of genocide and mass atrocity.
The chapter proceeds as follows. In section 4.1, I set out my basic account of legal norms and discuss two salient distinctions between legal norms and moral or social norms. In section 4.2, I consider contrasting approaches to the etiology of large-scale crimes and defend an approach adapted from the work of Deborah Mayersen. Sections 4.3 to 4.5 discuss three ways in which legal norms can escalate the risk of genocide and other forms of mass atrocity: by creating or reinforcing social out-groups through legal categorization, helping state leaders maintain external legitimacy while directing internal persecution, and providing cover for denials of large-scale crimes. Section 4.6 turns to consider a different kind of contribution that legal norms can make to the explanation of large-scale crimes, namely, the distinctive documentary evidence they furnish. Section 4.7 considers the challenge posed by an alternative explanatory pathway rooted in Christian Gerlach’s notion of “extremely violent societies.”
In his 2014 book, A World without Jews, historian Alon Confino details the regulations that German officials used during the 1930s to exclude Jews from the nation’s social and political life. In 1933, Jews were banned from the bar, from editorial positions at newspapers and magazines, and from the management of lotteries.8 In 1935, they were prohibited from working as tax consultants or as army officers.9 In 1938, they were barred from employment as auctioneers.10 And in 1939, they were blocked from using public air raid shelters and subjected to a nightly curfew.11
We know that German officials and institutions progressively excluded Jews from communal life in this period because we have records of their public pronouncements and private deliberations. We know, more concretely, because we have the texts of the exclusionary laws themselves.12 By reflecting on our ability to access and understand these laws today, we can gain insight into the distinguishing features of legal norms.13
In the first place, legal norms are at least partially grounded in real or perceived social practices. Such practices differ depending on the particular type of law in question: domestic or international, ecclesiastical or colonial. They also differ depending on the specific institutions and traditions found within given jurisdictions. What this claim concerning the practice-grounded feature of legal norms entails is simply that the existence or perception of certain social practices plays a part in justifying the acceptance of legal norms by individuals and groups and informs the action-guiding roles those norms perform within the practical point of view.
What sorts of social practices are relevant? At the limit, as in some cases of international law, as well as domestically in common-law jurisdictions, long-standing customs may ground legal norms. Here the relationship between law and social practices seems straightforward: were the practices different, so the laws would differ. Acts of genocide, crimes against humanity, and other kinds of large-scale crimes are today considered jus cogens violations in international customary law, and so this type of legal norm is relevant to individuals and groups seeking to assess accountability for such crimes. However, for an account of the place of legal norms in the explanation of large-scale crimes, customs are less relevant than the institutionalized practices of courts, legislators, and administrative agencies.14
Distinct from customary law is positive or statutory law: law explicitly created by an individual or institution endowed with legislative authority. Today in many countries, statutes are created by elected parliaments, legislatures, or assemblies. There is nothing in the nature of statutes that requires that they be created by such democratic bodies, however. In 1920s Russia, laws were enacted by high officials in the Communist Party; in 1920s Morocco, laws were instituted by the French governor-general. The positive laws created during earlier periods in the history of particular societies often continue to influence events in the present, largely because of their effectiveness in shaping the beliefs and guiding the actions of individuals raised under their jurisdiction. So, for example, the ethnic categories created under Belgian colonial law in Rwanda notoriously continued to influence postindependence politics in that country until the time of the 1994 genocide.15 The activities of legislative authorities in creating laws, and of courts and agencies in interpreting and implementing them, constitute what I am calling the practice-grounded nature of legal norms.
Some philosophers of law take this point further and argue that legal norms are grounded exclusively in certain social practices. This position is known as the “social fact thesis.” Put more precisely, the social fact thesis holds that what law there is within a given jurisdiction is determined exclusively by relevant social facts.16 Proponents of the social fact thesis offer different accounts of which particular facts are relevant. Some hold that what law there is can be determined chiefly by reading statutes, constitutions, and other published law texts, treating these texts as the prime sources of law. Others argue that the content of the laws should be determined chiefly by analyzing the ways in which specific legal actors (such as judges, jurors, or administrators) are disposed to act when presented with specific legal problems. One claim that proponents of the social fact thesis overwhelmingly deny is that questions about what law there is can be answered directly by appeal to moral principles.17 They deny, in other words, what Radbruch affirmed in his 1946 essay: that certain principles of justice stand above positively enacted laws and in some cases can render those laws invalid.18
It is not my intention to defend the social fact thesis against Radbruch’s arguments, or vice versa. My claim is that legal norms are at least partially grounded in real or perceived social practices, and that this helps distinguish them from moral norms. One advantage that the social fact thesis offers is that it provides insight into how the relationship between legal norms and social facts gives those legal norms a special power to pattern the conduct of groups. As philosopher Joseph Raz writes, “Law … helps to secure social co-operation not only through its sanctions providing motivation for conformity but also through designating in an accessible way the patterns of behavior required for such co-operation.”19 This special capacity of law to coordinate activity need not be beneficial to all individuals living within particular jurisdictions.20 It is equally crucial to explaining the contributions that legal norms make to the planning and perpetration of mass atrocity.21
Legal norms can be distinguished from moral norms on the basis of their grounding in real or perceived social practices, but this fact does not suffice to differentiate them from social norms, which are equally practice grounded.22 The second feature of legal norms I highlight helps distinguish them from both moral and social norms. Legal norms, unlike norms of these other kinds, are subject to standing procedural rules governing their emergence, modification, and elimination. Taken together, these rules constitute the basic requirements named by the term legality.
Lon Fuller offers one of the most influential inventories of these standing procedural rules.23 In his 1964 book, The Morality of Law, Fuller identified “eight ways to fail to make law.”24 Prospective lawmakers fail to make law, Fuller argued, when they issue rules that are ad hoc; fail to publicize the rules they make; make laws retroactive, unintelligible, contradictory, or impossible to follow; change laws too frequently; and fail to administer laws in the correct way.25 Fuller considered these eight failures to correspond to basic requirements of legality; he argued as well that such requirements provide safeguards against immoral laws. Subsequent authors have largely accepted Fuller’s list of criteria for legality, or the rule of law, while rejecting his metanormative claim. Joseph Raz argues that only minimal adherence to Fuller’s requirements is necessary in a functioning system of law and flatly denies that such adherence provides a safeguard against institutional immorality.26 Jeremy Waldron suggests that the eight features of law Fuller identified must be supplemented by certain additional features, related to the roles of particular legal actors, in any complete account of legality.27
There is a clear link between the distinctive features of legal norms that Fuller set forth and the evidential value of law for explaining large-scale crimes. When laws are passed publicly, rather than in secret; when they are designed as general rules, requiring interpretation to apply to particular cases; and when they are made intelligible rather than unintelligible, these features help ensure that laws can be accessed and understood not just by those within a particular society while they are operable, but also by those outside a society, even long after they have lapsed. Legal apartheid no longer exists in South Africa, but it is still possible to access and understand apartheid-era racial segregation laws. France no longer governs Morocco as a protectorate, but it is still possible to access and understand French colonial laws and policies mandating the separation of colonizers from colonized. The evidential quality of laws that conform to the requirements of legality is so great that many regimes bent on wicked ends have departed from the use of clear, well-publicized laws in order to conceal their actions. This was the case with the secret euthanasia program Aktion T4, discussed in chapter 1. It is also one reason why Fuller defended a necessary connection between law and morality.
The two features of legal norms that I have identified—their grounding in real or perceived social practices and the existence of standing procedural rules governing their emergence, modification, and elimination—serve to distinguish them from both moral and social norms. The debates about the relationship between legal and moral norms that have long occupied philosophers of law are useful insofar as they indicate that in practice there are few contexts in which just one of these kinds of norms is implicated in the deliberations of social and political actors. More commonly, both legal and moral norms accepted by individuals will be relevant. Sometimes these norms are well aligned. In other cases they conflict, setting the stage for shows of civil disobedience or troubling acts of moral compromise.
It is not only the decisions and actions of individuals that legal norms help explain, however. Just as important, legal norms help pattern the conduct of whole populations. To be sure, the practical commitments and normative attitudes of individual agents are fundamental. This is the upshot of the methodological individualism I endorsed in chapter 1.28 But we often find it convenient to refer to the power of legal norms to guide the decisions and actions of institutional actors, such as the League of Nations, the UN High Commissioner for Refugees (UNHCR), or specific state ministries. In what follows, I focus chiefly on the explanatory power of legal norms at this level: analyzing their place in the etiology of large-scale crimes and their status as privileged sources of evidence about such crimes.
To talk about the etiology of a phenomenon is to talk about the conditions that make it possible and intelligible.29 The processes of moral norm erosion and moral norm evasion discussed in chapter 2 count among such conditions. Few studies of the etiology of large-scale crimes focus on the adverse moral pressures that individual agents face, however. Most focus instead on institutional factors, including, notably, transformations in legal norms. Laws stripping rights from minority groups, decrees granting extraordinary powers to police forces or militias, and administrative rules restricting the freedom of journalists and other observers to speak out about abuses all exemplify such factors. I will consider each of these examples in more detail, but, first, it will be helpful to introduce a more general model of the conditions contributing to large-scale crimes.
Not all studies of the etiology of genocide and mass atrocity share the same analytical goals. While many strive to explain large-scale crimes, others are concerned with predicting these events. Predictive projects can be further divided into those concerned with identifying long-range risk factors and those concerned with providing early warnings to national minorities and the international community. As political scientist Ernesto Verdeja points out, the project of prediction differs from that of explanation in numerous ways.30 Most significant, predictive models seek to identify factors or conditions correlated with large-scale crimes, while explanatory models seek to identify factors or conditions that causally contribute to such crimes.31 As a result, not all of the factors included in risk assessment models or indexes of warning signs can be incorporated directly into explanations of mass atrocity.
Compounding these differences in purpose are differences in methods. Some theorists favor quantitative methods and endeavor to build data sets extensive enough to support robust statistical generalizations.32 Others adopt a qualitative approach and discover potential causal factors by conducting detailed case studies of particular occurrences of large-scale crimes.33 Still others seek to identify structural features of human societies that make mass atrocities possible in the first place.34
A third distinction concerns the ambitiousness of studies of the etiology of large-scale crimes. Here I am concerned specifically with studies aimed at explaining mass atrocities. Some authors announce the fairly modest goal of making large-scale crimes intelligible—showing, in other words, that such crimes do not violate basic principles commonly used to make sense of the behavior of individuals and groups. The political theorist Benjamin Valentino, for example, has shown that orchestrating mass killings can be rational for political leaders, at least under certain circumstances.35 Similarly, the sociologist Christopher Powell has argued that genocide, in particular, is not a departure from modern “civilizing processes” but rather compatible with them.36
Far more ambitious, as genocide scholar Deborah Mayersen observes, are studies that seek to identify necessary and sufficient conditions for large-scale crimes.37 Such studies straddle the divide between prediction and explanation, boldly aiming at both goals. Like Mayersen, I doubt any such account can succeed in the limited case of genocide. The challenge is still greater in the more variegated terrain of mass atrocity.
I believe Mayersen’s model of the etiology of genocide exhibits just the right level of ambition, focusing as it does on “escalatory” and “inhibitory” conditions along “the path to genocide.”38 Because I am concerned not just with genocide but with a broader range of large-scale crimes, I cannot adopt Mayersen’s model whole cloth. Nevertheless, key elements of her model apply to mass atrocities generally, and are especially useful for identifying ways in which legal norms contribute to such crimes.
Mayersen identifies eight conditions that progressively escalate the risk of genocide. These conditions are as follows:
1. Presence of an out-group within a society
2. Significant internal strife
3. Perception of an out-group as an existential threat
4. Case-specific precipitating or constraining factors
5. Processes of retreat from or escalation of violence
6. Emergence of a genocidal ideology
7. Creation of an extensive propaganda campaign
8. Further case-specific precipitating or constraining factors39
A society’s progress through these eight conditions need not be linear. Nor must it be unidirectional: both temporary and permanent (or indefinite) deescalations are possible.40 Nevertheless, these conditions, in this order, do seem to help explain the occurrence of genocide in the specific cases that Mayersen details (the Rwandan genocide and the genocide of Armenians in Turkey). Analogous conditions are apparent in other twentieth-century cases of genocide.
I have said that I cannot adopt Mayersen’s model without qualification, since her focus is on genocide specifically, not large-scale crimes more generally.41 Some of the conditions she identifies also clearly precede nongenocidal forms of mass atrocity, such as mass killing, mass rape, and forced removal. The presence of an out-group within a society is one such example; so are some of the case-specific precipitating or constraining factors Mayersen discusses, such as the perceived willingness of external powers to intervene in case of attacks on national minorities. Focusing on such factors individually and explaining how they escalate the risk of large-scale crimes seems to me legitimate, even if I cannot claim that nongenocidal large-scale crimes exhibit precisely the same tendency to progress through all eight of the conditions listed.
In what follows, I first discuss the power of legal norms to create or maintain out-groups within societies, via processes of legal categorization. Next, I discuss the power of legal norms to legitimate violence as it is occurring, which I identify with the fourth stage of Mayersen’s model. Finally, I consider the role of legal norms in concealing or hiding evidence of large-scale crimes from the international community—a power that counts as one of the further case-specific precipitating factors that Mayersen discusses. In each of these cases, I argue that an understanding of the two distinguishing features of legal norms enhances our understanding of the significance of legal norms within explanations of genocide and mass atrocity.
Laws create social categories and entrench social distinctions. This is true even in societies where equal treatment under the law is a fundamental principle. The construction of legal categories frequently proceeds from benign reasons and often serves egalitarian aims.42 But the power of legal norms to establish and enforce social categories is regularly exploited by leaders seeking to vilify, degrade, or expel members of specific groups.
The exclusionary laws that Confino listed in A World without Jews furnish clear examples of the use of legal norms to enforce social categories. Confino distinguishes between the work of categorization done by laws directed at German Jews and those directed at colonized subjects outside Europe, who from the time of first contact were regarded by Germans “as distinctly outside their own European civilization.”43 More recently, Peter Fritzsche has described the proliferation of racial, ethnic, and religious categories within Europe between 1933 and 1945, arguing that laws and regulations establishing such categories had clear effects on the beliefs and judgments of the individuals and groups bound by them. On the one hand, “thinking in terms of categories … required paying attention to differences that had previously not been thoroughly scrutinized.”44 On the other hand, “once set in motion, the process of division and subdivision could go on for a long time, until only lonely individuals remained to fend for themselves.”45 The “breakdown of solidarity” that Fritzsche sees as the result of this process of categorization is quite similar to the phenomenon of demoralization I described in chapter 2.
The significance of legal categorization for large-scale crimes is not limited to the era of National Socialism. Historian Eric Weitz, in his comparative study, A Century of Genocide, identifies categorization as one of the key features linking large-scale crimes in such geographically and temporally distant contexts as the early Soviet Union, Nazi Germany, Cambodia under the Khmer Rouge, and late twentieth-century Bosnia-Herzegovina. In each of these cases, Weitz argues, the categories of “race” and “nation” became “categories through which states organized the most extreme violations of human rights.”46 His discussion of the importance of legal categorization prior to the commission of atrocities in the former Yugoslavia supports Mayersen’s claim that the creation of out-groups constitutes one of the first escalatory conditions “on the path to genocide.”47
Because of their central focus on group destruction, acts of genocide necessarily involve some effort at categorization. But the use of laws to categorize and render vulnerable members of particular groups is not limited to this specific type of large-scale crime. Episodes of mass killing perpetrated against colonized subjects, for example, were made possible by the fact that the laws governing these subjects typically did not afford the same protections against state violence as laws governing citizens in the metropole.48 Likewise, legal restrictions placed on Jews in Imperial Russia, which confined them to the Pale of Settlement, increased their vulnerability to pogroms.
It is important to stress, once again, that legal norms do not always deprecate those they categorize. The Third Geneva Convention of 1949 offers a lengthy definition of the category of prisoners of war, applied to members of the regular armed forces of nation-states and irregular fighters in nonoccupied territories who respect the laws and customs of war.49 The explicit purpose of this legal categorization, as stated in Article 3 of the Convention, is to ensure the “human[e]” and “civilized” treatment of prisoners and to protect captives against “humiliating” or “degrading” usage.50 Other, less effective, efforts at protective legal categorization include the distinction made in international law between fortified and nonfortified towns as targets for attack.
Confronted with such contrasting evidence, we may wish to conclude that the effects of legal categories are knife-like: they may cut either way, for the good or the ill of the individuals and groups categorized.51 But this would be premature, for we have yet to consider whether the negative effects of legal categorization are in any way constrained by the reality, or unreality, of the categories created. My own view is that social identities, or the identities attributed to individuals and groups in social life, need not be grounded in real features or characteristics of those individuals or groups, but are often grounded in merely perceived characteristics. But these perceptions are themselves deeply influenced by social practices and institutions, including laws designed to create or distinguish different categories of people.52
A particularly powerful example of the ability of legal norms to create enduring social categories comes from Rwanda. In that country, as Mahmood Mamdani has shown, racial identities that were first “legally enforced and institutionally reproduced” during the period of Belgian colonial rule provided a basis for judgments about indigeneity and foreignness that long outlived colonization and proved crucial to the 1994 Rwandan genocide.53 Even before that grim event, the legally produced racial categories helped give rise to massacres in the 1960s during Rwanda’s social revolution.54 The role of legal categorization as an escalatory factor in those nongenocidal mass killings seems as clear as in the subsequent case of genocide.
Pursuing policy objectives through duly enacted laws is an important signal of political legitimacy. So too is avoiding actions that clearly violate domestic or international legal norms. A concern for legitimacy may seem unlikely to crop up in contexts where state leaders contemplate attacks on their own populations. However, historical evidence suggests that leaders and officials in such states often take steps to maintain at least the appearance of legitimate rule. The use of laws to create or preserve this appearance before and during mass atrocities thus constitutes a second important contribution of legal norms to the explanation of large-scale crimes.
In speaking of states’ efforts to create or maintain the appearance of legitimacy, I have in mind the framework developed by Alex Bellamy in his 2012 book, Massacres and Morality. Bellamy, as noted in chapter 3, believes that state actors planning or perpetrating mass atrocities seek to avoid negative judgments by external observers about their legitimacy.55 One way that state actors seek to maintain legitimacy is by preventing particular legal norms from becoming widely accepted at the international level.56 At the 1899 International Peace Conference at the Hague, for example, the British delegation sought to prevent the passage of a declaration condemning the use of expanding bullets, arguing that these munitions were necessary for conflicts in their colonies.57 Similar resistance to the development of special prohibitions on aerial warfare in international law has proved more effective, so that now states may be legally condemned for disproportionate or indiscriminate bombardment, but not simply for the act of aerial bombardment itself.58
Absence of law is not the only way in which legal norms can help states engaged in large-scale crimes maintain their legitimacy. Bellamy describes several other tactics that are relevant here. One is the creation of new domestic laws that challenge existing international legal norms. Although not yet rising to the level of mass atrocity, US policies on targeted killings carried out by drones, developed over the Bush and Obama administrations, appear to pursue this strategy for contesting long-standing international legal prohibitions on assassination in war.59
Another tactic Bellamy describes is the appeal to other norms to legitimate behavior that violates a particular norm. Here, the practice-grounded nature of legal norms is particularly significant, for it means that there is less likely to be disagreement about whether the alternative norms appealed to exist, and only about whether those legal norms actually justify or excuse the behavior engaged in. In the run-up to mass atrocities, states may pass any number of laws stigmatizing particular members of the population, suspending ordinary requirements of due process, and allowing indefinite detention. The mere existence of such laws does not morally justify the policies pursued, but it may make it more difficult for both internal and external actors to conclude that large-scale crimes are underway. This is especially true when such laws employ camouflaged language or euphemisms of the kind discussed in chapter 2.
One of the most disturbing ways in which legal norms help states maintain sufficient legitimacy is when laws are used to compel members of targeted groups to participate in their own expropriation, expulsion, or annihilation. In the case of the Holocaust, German authorities employed this tactic both before the policy of physical destruction began, with laws requiring Jewish business owners to sell their concerns to “Aryan” partners, and, more controversially, after the camps and ghettos had been created, with the use of Jewish Councils to help enforce persecutory regulations within the carceral universe. Jews implicated in this task were subjected to judgments in honor courts immediately after the war, and the topic stirred significant historiographical debate from the late 1960s to the 1990s.60 The most recent literature has shown that significant debates did occur among Jews within various ghettos about whether their cooperation with the laws and orders of the oppressors would help ameliorate the effects of those policies, even at the cost of lending them apparent legitimacy.61
Having discussed various ways in which legal norms help state leaders maintain sufficient legitimacy while engaging in assaults on their own citizens, it remains to say where this function of legal norms fits in the etiology of large-scale crimes. Here we should return to the case-specific escalatory and inhibitory factors that Mayersen discusses. In particular, she describes the expectation of diplomatic sanctions or military intervention by other states as a case-specific inhibitory factor. The legitimizing role of legal norms, insofar as they decrease the chances of such diplomatic or military responses by other states, removes this inhibitory factor. For this reason, it makes sense that some of the changes in legal norms considered here occur well before large-scale crimes, while others occur while those crimes are ongoing or about to conclude.
Mass atrocities, I have argued, are sometimes carried out by means of ordinary laws and legal institutions. But many large-scale crimes are conducted extralegally, executed in secret by hired mercenaries or paramilitary forces.62 In such cases, we may still find that legal norms play an important explanatory role insofar as they provide officials with pretexts for denying atrocities while they are ongoing and after they have occurred. In some ways, this is an extension of state efforts to maintain sufficient legitimacy despite sponsoring mass atrocities. But it seems to me different enough to call for separate treatment.
The crudest way of rejecting reports of genocide or other forms of mass atrocity is to say that they cannot be true because existing laws prohibit such actions. Sociologist Stanley Cohen terms this approach “magical legalism.”63 He illustrates this form of denial using the example of state-sponsored torture. First, Cohen explains, governments invoke domestic laws and international conventions prohibiting torture. Then they offer a “magical syllogism: torture is strictly forbidden in our country; we have ratified the Convention Against Torture; therefore what we are doing cannot be torture.”64 Such appeals to existing laws may sometimes help states engaged in large-scale crimes maintain their legitimacy, but this is a risky strategy. Frequently, international observers will be able to collect and disseminate contrary evidence. Besides, it is now common knowledge that states can pursue mass atrocities despite legal prohibitions. For this reason, we should turn to more sophisticated forms of legal denials of violence.
One form of legal denial consists of the passage of censorship laws and the criminalization of unpatriotic or slanderous forms of expression. This form of denial prevents individuals living both within and outside the bounds of particular societies from gaining accurate information about ongoing atrocities. The German-Jewish diarist Victor Klemperer provides compelling evidence of such censorship under National Socialism during World War II. In his diaries, first published in 1995, he repeatedly registers his fear that letters describing lack of medical care or the rigors of forced labor will result in charges of spreading “atrocity propaganda.”65 The fact that most countries employ censorship of some kind during armed conflicts means that states employing this strategy to conceal large-scale crimes sometimes succeed in maintaining sufficient legitimacy.
A second form of legal denial occurs after large-scale crimes have been committed, but while they remain unacknowledged by a ruling government. The best-known example of this phenomenon comes from contemporary Turkey, where citizens face sanctions under a law prohibiting “denigrating Turkishness” for referring to early twentieth-century attacks on Armenians as genocide.66 As sociologist Fatma Göçek observes, this post hoc denial of violence has precedents in the history of Ottoman rule in Turkey, as well as in the censorship employed in the wake of previous episodes of mass killing.67
A third significant form of legal denial occurs after atrocities have taken place and after officials responsible for ordering or orchestrating crimes have left office. This form of denial consists of amnesty laws that offer immunity for and restrict investigations into past atrocities. Legal philosopher Carlos Santiago Nino describes in detail the so-called self-amnesty law passed by Argentinean president Reynaldo Bignone in September 1983, which not only provided amnesty for individuals who had engaged in “subversive and countersubversive acts” between 1973 and 1982 but also prohibited subpoenas and interrogations of persons likely to be covered by the amnesty.68 Today this type of transitional settlement, which serves neither the interests of truth nor of justice, has been supplanted by transitional justice arrangements that at least encourage truth telling. Still, it provides an example of a third form of legal denial.
What links these three forms of denial is that each seeks to use laws to eliminate evidence concerning ongoing or historical crimes, thus constraining knowledge about such crimes either domestically or within the international community. At the same time, however, the public nature of the relevant legal norms frequently creates a record of the fact that something is being covered up. For this reason, legal denial appears at least partially self-undermining.
It might be objected that the strategy of legal denial has no place in the model of the etiology of large-scale crimes that I have adopted. How, after all, can laws that prevent discussion or investigation of past crimes belong to the factors that escalate the risk of such crimes? The answer is that the availability of legal means of denial may be something that planners or perpetrators of mass atrocities take into consideration when deliberating over such courses of action. When political leaders have the power to declare states of emergency and possess under such conditions legal rights to engage in censorship, along with the institutional capacity to do so, this can make the decision to engage in attacks on vulnerable populations appear less risky. When state archives have control over official documents, this may convince bureaucrats or military planners that evidence of their role in large-scale crimes is less likely to come to light. In both cases, the prospect of future deniability serves to reduce existing constraints on mass atrocity.
Legal norms, as we have seen, play a significant role in the etiology of genocide and other kinds of mass atrocities. Their power to preserve legitimacy and impede accountability goes some way toward establishing the place of legal norms in explanatory accounts of large-scale crimes. But there is another way in which legal norms advance such explanations: their special evidential qualities.
Laws generate documents. In open societies, the texts of laws themselves are routinely published in official organs. But the paperwork produced in the codification of laws makes up only part of a much larger accretion of documents. Judicial institutions charged with interpreting laws and providing remedies in case of violations produce piles of materials yearly. So too do administrative agencies tasked with implementing laws and coordinating the enforcement of new statutes alongside existing ones. Much of this documentation continues to be produced even where the laws themselves are kept secret, or where ordinary legislative and judicial functions are taken over by military governors and courts-martial. Such documents provide a valuable stock of evidence for lawyers and historians seeking to explain the progress of large-scale crimes.
In his opening statement to the International Military Tribunal at Nuremberg, American chief prosecutor Robert Jackson assessed the different forms of evidence available for prosecuting perpetrators of Nazi-era crimes. He discounted first-personal accounts from victims of those crimes, telling the court, “We will not ask you to convict these men on the testimony of their foes.”69 Instead, Jackson favored the use of documentary evidence, declaring, “There is no count in the Indictment that cannot be proved by books and records.”70
Jackson’s reference to “books and records” does not place explicit emphasis on the documents generated by laws themselves as sources of evidence about Nazi criminality. But Uğur Üngör and Mehmet Polatel, in their study of “confiscation and destruction” during the Armenian genocide, exploit precisely this phenomenon in order to reconstruct the progress and methods of state-sponsored robbery.71 “The expropriation of Ottoman Armenians,” these authors argue, “was a functionally necessary phase linking persecution to destruction.”72 Through this process, targets of persecution were deprived “not only of their possessions, but also of possibilities for escape, refuge, or resistance.”73 In documenting this process of deprivation, the authors draw in part on the collection of official documents from the period 1915 to 1920 published in the 1980s by the office of Turkey’s prime minister with the aim of justifying the wartime policy of the Committee of Union and Progress (CUP) toward the Armenians.74 But they also rely on the contemporary publication of the early “temporary law” regarding deportation and expropriation in 1915 in the semiofficial newspaper of the CUP, the Ottoman Gazette.75 The publication of laws in government documents and in more widely circulating newspapers reflects the publicity requirement of legality, exacerbated, in this case, by the need for the ruling party to be able to cite a formal basis for confiscations in their dealings with foreign governments and firms that held debt from Armenians.76 What Üngör and Polatel characterize as the “legalization of pillage” served the short-term aims of a government engaged in forced removal and mass killing. But it also, and ironically, serves the aims of historians and other scholars seeking documentation of the etiology of such crimes.
To be sure, laws and the documents they generate cannot be the sole or complete source of evidence concerning large-scale crimes, since states that engage in such crimes often deploy extralegal tactics at particular stages and since, as I have shown, states often try to conceal or deny the legal basis for destructive policies. But while these considerations suggest that a complete explanation of genocide and mass atrocity cannot be found by focusing solely on legal norms, the argument of this chapter is in fact the reverse: that no complete explanation can deny a central place to such norms. The special evidential value of legal norms, like their distinctive power to marginalize groups, legitimate persecution, and curtail communication, helps prove this claim.
Publicly promulgated laws, created in accordance with standing procedural rules, help create social categories, legitimize discriminatory policies, and restrict the spread of knowledge about violent acts. State actors seeking to carry out genocide or other types of mass atrocities typically supplement legal measures with extralegal tactics and secret orders. But the desire of such actors to maintain legitimacy before, during, and after large-scale crimes creates pressure to preserve at least a veneer of legality through the continued use of legal norms. This helps support the main argument of this study, which is that mass atrocities typically reflect the presence, not the absence, of norms.
In response to these claims, some might cite specific instances of large-scale crimes that do not exhibit the legal dynamics already discussed. Others might argue that secret orders and extralegal tactics have played a far greater role than ordinary laws and regulations in most historical cases of genocide and mass atrocity. I will consider such extralegal rules in detail later in this study, when I turn my attention to social norms. For now, I consider a different, and more thoroughgoing, challenge to my account of the explanatory significance of legal norms. This challenge takes the form of an alternative etiology of mass atrocity.
In a 2010 study, historian Christian Gerlach develops a theory of what he calls “extremely violent societies.”77 His aim is to provide an alternative to the “genocide approach” to mass violence.78 Gerlach’s objections to that approach are epistemological. He believes that viewing historical cases of mass violence through the lens of genocide tends to serve political, rather than explanatory, goals. Although his critique is directed at genocide specifically, it extends to some other forms of large-scale crimes, such as ethnic cleansing. Most significant for my purposes, he takes a broadly skeptical view of the action-coordinating function of legal norms in situations of mass violence, denying in particular that the focus on institutional actors encouraged by a study of laws aids our understanding of large-scale crimes.
Drawing on detailed case studies of societal conflicts in Indonesia, Turkey, Greece, and elsewhere, Gerlach argues that four features characterize the violence experienced in those societies. First, “various population groups” are victims of the violence—variously suffering rape, torture, displacement, or murder.79 Second, “diverse social groups participate,” directly or indirectly, in these violent acts.80 Third, the reasons and motives that individuals and groups have for participating in violence are complex and subject to change over time.81 Fourth, the origins of violent acts and policies are not limited to high officials but implicate broader segments of society.82
This empirically grounded characterization of mass violence departs from the traditional framework of genocide studies in two important ways. First, the concept of genocide, from its inception in the writings of Raphael Lemkin to its current existence in international criminal law, conceives of mass violence as directed at specific social groups. It also assumes that the social identities of those groups help shape the violent intentions of perpetrators.83 Gerlach departs from this framework by acknowledging a plurality of victim groups and recognizing the complexity of perpetrator motivations.
The second departure from standard analyses of genocide has less to do with the features tracked by this concept and more to do with the presumed reasons for its prominence in contemporary political life. Genocide, according to Gerlach, is “an action-oriented model designed for moral condemnation, prevention, intervention, or punishment.”84 The desire of genocide scholars to make their concept an effective tool for political advocacy “leads to simplification, with a focus on government policies.”85 This focus on government action is exacerbated by the fact that “state operations are better documented” than popular participation in mass violence.86 Doubtless Gerlach would deem the analysis of legal norms offered in this chapter entirely symptomatic of this last tendency.
Several of the criticisms Gerlach lodges against the conceptual framework of genocide can be extended to other specific types of large-scale crimes. It is true that the concepts of mass killing and mass rape do not inherently make reference to specific social groups or assume unified perpetrator intentions. Nevertheless, a focus on state officials and institutions, grounded in a desire for both political efficacy and thoroughness of evidence, is manifest in much of the historical and social scientific work on such crimes. Put most strongly, Gerlach’s critique holds that existing approaches to the study of large-scale crimes privilege political and legal goals over explanatory power. This is what his alternative etiology, which emphasizes cross-cutting social fissures and informal coalitions for violence, is meant to correct.
Three responses to Gerlach’s argument are available. The first is to note that my approach in this study aims to accommodate precisely the plurality of actors and interests that Gerlach identifies at the core of large-scale crimes. Not only are moral, legal, and social norms distinguished by their relationship to social practices and standing procedural rules; these differences themselves create differences in the value of each kind of norm for explaining various kinds of individual and institutional actions. Gerlach’s claim that much scholarship on genocide (and, by extension, other forms of mass atrocity) focuses unduly on official institutions and actions may apply to my account of legal norms in this chapter, but this is precisely why I have tried in the other chapters of this book to describe pathways for explaining large-scale crimes that are not directly tied to official laws and institutions. Each level of analysis has a part to play in explaining crimes that, by definition, implicate broad swathes of the societies in which they occur.
The second response is to double down on my claims concerning the distinctive features of legal norms that make them particularly relevant to the explanation of genocide and mass atrocity. Social categorization, legitimation of persecution, and denials of violence do sometimes proceed through the devices of unofficial institutions, whose declarations and actions lack the force of law. Julius Streicher’s newspaper, Der Stürmer, engaged in all of these activities in 1920s Germany before Streicher rose to an official position as Gauleiter (district leader) in Nuremberg in the 1930s. Nevertheless, legal norms can create categories that are enforceable in court, they can legitimate the taking of property without hope of compensation or relief, and they can smother testimony about past or present violence with the cloak of censorship.
My third response to Gerlach is to acknowledge that there is indeed an asymmetry between the legal norms developed in international criminal law for the prosecution of large-scale crimes, on the one hand, and the motivations and identities of individuals and institutions that use domestic laws to plan and perpetrate such crimes, on the other. Not every institution that helps clear the path to genocide, mass rape, or forced relocation does so due to prevailing beliefs in the fundamental inferiority or dangerousness of particular out-groups. Nor are all individual perpetrators of large-scale crimes significantly influenced by changes in laws or institutions. Nevertheless, legal norms, with their distinctive features, are central to understanding the contributions that laws and institutions make to the etiology of mass atrocities.
1. Gustav Radbruch, Biographische Schriften, ed. Günter Spendel (Heidelberg: C. F. Müller Juristischer GmBH, 1988), 168; my translation.
2. Gustav Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht,” Süddeutsche Juristen-Zeitung 1, no. 5 (1946): 105; my translation. For a full English version of this short text, see Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law,” trans. Bonnie L. Paulson and Stanley L. Paulson, Oxford Journal of Legal Studies 26, no. 1 (2006): 1–11.
3. Radbruch, “Gesetzliches Unrecht,” 105.
4. Kristen Rundle, “The Impossibility of an Exterminatory Legality: Law and the Holocaust,” University of Toronto Law Journal 59, no. 1 (2009): 65–125.
5. Lon Fuller, “Positivism and Fidelity to Law,” Harvard Law Review 71, no. 4 (1958): 630–672.
6. H. L. A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, no. 4 (1958): 593–629. See also H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press), 1997.
7. Hart, “Positivism,” 619–621. For a helpful discussion of the Hart–Fuller debate and its influence on contemporary jurisprudence, see the essays collected in Peter Cane, ed., The Hart–Fuller Debate in the Twenty-First Century (Oxford: Hart, 2010).
8. Alon Confino, A World without Jews (New York: Columbia University Press, 2014), 51.
9. Confino, A World without Jews, 74.
10. Confino, A World without Jews, 107.
11. Confino, A World without Jews, 170.
12. For a compendium of such exclusionary laws, cited by Confino in his own discussion, see Joseph Walk, ed., Das Sonderrecht für die Juden im NS-Staat (Heidelberg: C. F. Müller Juristischer Verlag, 1981).
13. There is a tendency among commentators in some scholarly domains today to distinguish between “norms,” on the one hand, and “laws,” on the other, suggesting that if something can be described as a norm, it is by definition not a law. I want to make clear that this is not how philosophers use the term norm, and it is not how I am using that term in this study. We might interpret this tendency as a case of assuming that the term norm applies only to what Brennan et al. call “non-formal norms,” that is, social or moral norms. See Geoffrey Brennan, Robert Goodin, Nicholas Southwood, and Lina Eriksson, Explaining Norms (New York: Oxford University Press, 2013), chap. 3.
14. I discuss customs and their relationship to social norms in chapter 6 of this study.
15. For an especially illuminating discussion of this point, see Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton, NJ: Princeton University Press, 2001).
16. There are in fact many competing versions of the social fact thesis, most of which take their start from H. L. A. Hart’s The Concept of Law. I simplify matters for the sake of discussion here. For discussion, see Hart, The Concept of Law; Jules Coleman, “Negative and Positive Positivism,” Journal of Legal Studies 11 (1982): 139; and Joseph Raz, “Legal Positivism and the Sources of Law,” in The Authority of Law, 2nd ed. (Oxford: Oxford University Press, 2009), 37–52.
17. Raz, “Legal Positivism.” Moral principles may still indirectly determine what law there is, on this account, since duly authorized legal actors such as judges and legislators often have recourse to moral principles when reaching their decisions, or drafting their statutes.
18. Radbruch, “Gesetzliches Unrecht.” Note again the qualification offered in note 17.
19. Raz, “Legal Positivism,” 51.
20. Raz himself acknowledges this point, as I note below.
21. A further advantage of this first feature of legal norms appears in its connection to my general account of practical deliberation. On that account, individual men and women engaged in practical deliberation can and do include in their reflections some attention to what the law in their particular jurisdiction holds with respect to various courses of action. Recognizing the practice-grounded character of legal norms helps align the inquiry researchers make after the fact with the deliberations undertaken in the moment by individual members of a political society. It does not make those positions equivalent; there is still reason to think that researchers cannot, from their external perspective, directly recreate the reasoning of the individuals they are studying. But insofar as the declarations and interpretations of institutions are publicly available, there seem to be more grounds for confidence here than in, say, ascriptions of guidance by moral norms that proceed without a basis in testimonial or documentary evidence.
22. See chapter 6 for discussion of this point.
23. Although Fuller tends to refer to these as “formal” rules or principles for law-making, I follow Jeremy Waldron in calling them procedural rules. See Jeremy Waldron, “The Rule of Law and the Importance of Procedure,” in NOMOS L: Getting to the Rule of Law, ed. James Fleming (New York: NYU Press, 2011), 3–31.
24. Lon Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1964), 33.
25. Fuller, The Morality of Law, 33–38.
26. Joseph Raz, “The Rule of Law and Its Virtue,” in The Authority of Law, 2nd ed. (Oxford: Oxford University Press, 2009), 223–226.
27. Waldron, “The Rule of Law.”
28. See note 24.
29. Barbara Harff, “The Etiology of Genocides,” in Genocide and the Modern Age, Etiology and Case Studies of Mass Death, ed. I. Wallimann and M. N. Dobkowski (Westport, CT: Greenwood Press, 1987), 41–59.
30. Ernesto Verdeja, “Predicting Genocide and Mass Atrocities,” Genocide Studies and Prevention 9, no. 3 (2016): 13–32.
31. Verdeja, “Predicting Genocide,” 14–15.
32. Barbara Harff, “Countries at Risk of Genocide and Politicide after 2016—and Why,” in Preventing Mass Atrocities: Policies and Practices, ed. Barbara Harff and Ted Robert Gurr (New York: Routledge, 2018), 27–39; Jennifer Leaning, “Early Warning for Mass Atrocities: Tracking Escalation Parameters at the Population Level,” in Reconstructing Atrocity Prevention, ed. Sheri Rosenberg, Tibi Galis, and Alex Zucker (Cambridge: Cambridge University Press, 2016), 152–178.
33. David Feierstein, Genocide as Social Practice: Reorganizing Society under the Nazis and Argentina’s Military Juntas (New Brunswick, NJ: Rutgers University Press, 2014); Scott Straus, The Order of Genocide (Ithaca, NY: Cornell University Press, 2006).
34. David Livingstone Smith, Less Than Human (New York: St. Martin’s Press, 2011); Christopher Powell, Barbaric Civilization (Montreal: McGill–Queen’s University Press, 2011).
35. Benjamin Valentino, Final Solutions: Mass Killing and Genocide in the 20th Century (Ithaca, NY: Cornell University Press, 2005).
36. Powell, Barbaric Civilization.
37. Deborah Mayersen, On the Path to Genocide (New York: Berghahn Books, 2014), 14–15.
38. Mayersen, On the Path to Genocide, 15.
39. Mayersen, On the Path to Genocide, 16.
40. Mayersen, On the Path to Genocide, 195.
41. In fact, Mayersen does discuss nongenocidal mass atrocities in her account of events preceding specific historical genocides. In the case of the Armenians, for example, she cites mass killings in the late nineteenth century as some of the case-specific precipitating factors.
42. Cf. Joseph Tussman and Jacobus tenBroek, “The Equal Protection of the Laws,” California Law Review 37, no. 3 (1949): 341–380.
43. Confino, World without Jews, 131.
44. Peter Fritzsche, An Iron Wind (New York: Basic Books, 2016), 244.
45. Fritzsche, An Iron Wind, 245. Fritzsche’s discussion of the “lonely individual” created by legal categorization recalls Hannah Arendt’s description of loneliness as one end result of totalitarian rule. See Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, 1976), 474–477.
46. Eric Weitz, A Century of Genocide (Princeton, NJ: Princeton University Press, 2003), 17.
47. Weitz remarks, “Serb nationalists, and their counterparts among Croats, Slovenes, and, finally, Muslims, sought to ‘fix’ identities, to establish clearly and cleanly who was a member of what group. Only when that knowledge was firmly established could the state then determine those who deserved the rights and privileges conferred by membership in the nation, and those who had to be driven out and killed.” Weitz, A Century of Genocide, 201.
48. In part, this was because colonized populations often endured long periods of rule by martial law. See Lyndall Ryan, “Martial Law in the British Empire,” in Violence, Colonialism and Empire in the Modern World, ed. P. Dwyer and A. Nettelbeck (Cambridge: Cambridge University Press, 2018), 93–109.
49. For the text of this Convention, see https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf.
50. For the text of this Convention, see https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf.
51. Raz, “Rule of Law,” 225–226.
52. Anthropologist and genocide scholar Alex Hinton highlights this relationship between bare perceptions of difference and institutional avowals of difference when he writes, “If all human beings are born with a propensity to distinguish difference, modern societies are distinguished by the degree to which such differences are reified.” Alexander Laban Hinton, “The Dark Side of Modernity: Toward an Anthropology of Genocide,” in Annihilating Difference: The Anthropology of Genocide, ed. Alexander Laban Hinton (Berkeley: University of California Press, 2002), 12.
53. Mamdani, When Victims Become Killers, 190.
54. Mamdani, When Victims Become Killers, 129–130. See also Mayersen, On the Path to Genocide, 124–132.
55. Alex Bellamy, Massacres and Morality (New York: Oxford University Press, 2012), 27–31.
56. Bellamy, Massacres and Morality.
57. Geoffrey Best, “Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came After,” International Affairs 75, no. 3 (1999): 627.
58. Francisco Javier Guisández Gómez, “The Law of Air Warfare,” International Review of the Red Cross 323 (1998): 347–364.
59. Christopher Kutz, “How Norms Die: Torture and Assassination in American Policy,” Ethics and International Affairs 28, no. 4 (2014): 426–430.
60. Cf. Gabriel Finder and Laura Jockusch, eds., Jewish Honor Courts (Detroit: Wayne State University Press, 2015).
61. Finder and Jockusch, “Introduction” to Jewish Honor Courts.
62. For a helpful discussion of paramilitarism in the context of genocide, see Uğur Üngör, “The Armenian Genocide in the Context of 20th Century Paramilitarism,” in The Armenian Genocide Legacy, ed. Alexis Demirdjian (New York: Palgrave Macmillan, 2016), 12–14.
63. Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering (Malden, MA: Polity Press, 2001), 108.
64. Cohen, States of Denial.
65. Victor Klemperer, I Will Bear Witness, 1942–1945 (New York: Modern Library, 2001), 219–220, 297.
66. Fatma Müge Göçek, Denial of Violence: Ottoman Past, Turkish Present, and Collective Violence against the Armenians, 1789–2009 (New York: Oxford University Press, 2015), 8.
67. Göçek, Denial of Violence.
68. Carlos Santiago Nino, Radical Evil on Trial (New Haven, CT: Yale University Press, 1996), 64–65.
69. Robert Jackson, opening statement, “Second Day, Wednesday, 11/21/1945, Part 04,” in Trial of the Major War Criminals before the International Military Tribunal, vol. 2: Proceedings: 11/14/1945–11/30/1945, 98–102 (Nuremberg: IMT, 1947). (Official text in the English language.)
70. Jackson, opening statement. At the close of the tribunal, the US government published an edited collection of documents submitted as evidence at the trial; though containing only a selection of the overall material produced, this collection ran to eight volumes. See US Office of Chief Counsel for the Prosecution of Axis Criminality, Nazi Conspiracy and Aggression, 8 vols. (Washington, DC: US Government Printing Office, 1946).
71. Uğur Üngör and Mehmet Polatel, Confiscation and Destruction: The Young Turk Seizure of Armenian Property (London: Continuum, 2011).
72. Üngör and Polatel, Confiscation and Destruction, 103.
73. Üngör and Polatel, Confiscation and Destruction.
74. Armenians in Ottoman Documents (1915–1920) (Ankara: Turkish Republic Prime Ministry General Directorate of the State Archives, Directorate of Ottoman Archives, 1982). For clarification of the political and ideological context surrounding this official publication, see Donald Bloxham, The Great Game of Genocide (New York: Oxford, 2005), 220.
75. In Turkish, the Takvim-i Vikâyi. Üngör and Polatel, Confiscation and Destruction, 43n13.
76. Üngör and Polatel, Confiscation and Destruction, 45. See also Ümit Kurt, “The Plunder of Wealth through Abandoned Properties Laws in the Armenian Genocide,” Genocide Studies International 10, no. 1 (2016): 44.
77. Christian Gerlach, Extremely Violent Societies (Cambridge: Cambridge University Press, 2010).
78. Gerlach, Extremely Violent Societies, 5.
79. Gerlach, Extremely Violent Societies, 1.
80. Gerlach, Extremely Violent Societies.
81. Gerlach, Extremely Violent Societies, 3.
82. Gerlach, Extremely Violent Societies, 4.
83. Larry May, Genocide: A Normative Account (Cambridge: Cambridge University Press, 2010).
84. Gerlach, Extremely Violent Societies, 6.
85. Gerlach, Extremely Violent Societies.
86. Gerlach, Extremely Violent Societies, 4.