William Schabas has taken a decidedly non-nominalist position with regard to the identification of groups in genocide cases. Indeed, he argues that there must be some “objective existence” for people to count as groups in genocide law.11Unfortunately, he provides little by way of details of this metaphysical view. Nonetheless, I will try to sharpen his critique and then address his various objections. Schabas’s general strategy is to try to show that the four categories of groups that the Genocide Convention recognized, namely, racial, ethnical, national, and religious groups, all overlap and “define each other” as national minorities that are subject to harms based on ethnic hatred.12Although these groups are not completely nonvoluntary, at least they are groups that people rarely leave.13He then argues that it is a mistake to expand the list beyond these four categories, and certainly a mistake to allow for a subjective interpretation of which groups should be protected in genocide law, because then we would have to recognize groups with “no real objective existence.”14
My response has several parts. First, it is not at all clear that the four categories of groups (national, racial, ethnic, and religious) can be clearly distinguished from gender groups or political groups in terms of anything approximating
“objective existence.” That the four groups listed in the Genocide Conven- tion may be connected to each other is no reason to think that only these groups should be listed in that Convention. Schabas is correct to say that there is a historical reason for why just these groups are listed, namely, that the subject of the Holocaust (Jews) arguably overlapped with all four groups. That reason, however, has no bearing on the metaphysical issue he alludes to as the central issue in deciding whether to list a certain group as a possible subject of genocide.
11Schabas,Genocide in International Law,110.
12Ibid.,119. 13Ibid.,137.
14Ibid.,110.
Identifying Groups in Genocide Cases 101 Second, it is not at all clear what Schabas means by “objective existence”
when it comes to group identification. There is indeed a distinction between subjective and objective means of identifying groups – with the latter category reserved for identification that is not merely based on what the members of one group think. Indeed, the better distinction is really between subjective and intersubjective. Schabas seems to want more than this – something “physical,”
as he says. He then points out that there really is not any clear bloodline method of identifying even the four groups listed in the Genocide Convention. In any event, other than saying that the four categories are based in the historical fact of national minorities (like the Jews who were subject to persecution during the Holocaust), Schabas does not give us much else to go on. In the rest of this section, I try to provide an argument that could support Schabas’s claims and then suggest how a nominalist like me could respond.
I suppose that the strongest argument in favor of Schabas’s position is that one needs something to perceive in identification if any kind of third-party assessment, such as that in law, is going to have a chance of succeeding. We could then add to this that only certain perceptible characteristics have been the basis of persecution over the centuries – not hair color, but rather skin color; not club membership but religious membership; not geographic home, but rather home within political borders. As I wrote above, tribes pose an especially hard problem because it is implausible to say that they have not been subjects of persecution but that only ethnic groups have been. Yet, even in the case of tribes, one could regard them as merely small, close-knit ethnic groups of a certain sort, as indeed seems to be happening in discussions of ethnicity today. In any event, they are often identifiable based on perceptible characteristics such as facial features or cultural practices.
In support of Schabas’s view, one could argue that if there are no clearly perceptible characteristics it will be hard for a judge or jury to ascertain whether there really is a group that was being persecuted instead of there merely being harms directed at discrete individuals. Also, unless these characteristics are in fact connected to a real existing group that remains stable over time, there will be no good reason to treat persecution based on these characteristics as normatively important. Schabas’s view seems to be that grounding claims of group persecution, or genocide for that matter, in perceptible characteristics is the only real alternative to allowing the members of a particular group to have a kind of exclusive or private say over who is a group and who is a member of that group.
Nominalists, like me, could reply to this argument, which I am attributing to Schabas, that they do not deny that groups need to be identified by perceptible characteristics. What they do deny is that it makes sense to talk of these characteristics as being grounded in some objective existence of the group. In
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my group-based construal of nominalism, there must be characteristic features of a group that are perceptible for it to make sense to talk of group membership at all. Group-based characteristics are common features that individuals share with other individuals. That individuals share features with one another does not mean that there are existing groups in which these features inhere. Rather there is no reason to postulate the existence of a group merely because there are common features that individuals share. Also, there is no reason that there must be such an existing group for judges and juries to be able to tell if there is persecution or genocide being conducted against individuals on the basis of common perceptible features. Of course, it will be convenient to talk about the individuals who have the common features as constituting a group, but such references need not commit us to the objective existence of this group.
It is my view that genocide as a crime still makes sense without there being objectively existing groups, for the intent to destroy a group would mean the intent to destroy all, or a significant number, of those individuals who have certain common features. There may be value to the group in that those individuals who have these common features are organized, or cohere, in a certain way that itself has value. If there is a kind of consensus that we can
“name” the group and treat the group as if it were an existing thing, then that is enough for there to be genocide or persecution waged against the group.
Indeed, naming is such a crucial social marker that in some ways it does not matter whether there is anything in objective reality that corresponds to the names at all. I will not make the assumption that there is no objective reality but only that whatever features there are of such reality, groups are not its constituents.
Schabas is certainly right to worry that genocide could end up being mean- ingless if there is nothing that corresponds to group names, but the main reason for this is that then there would be no special value to the loss of groups and hence no special harm to the destruction of a group over and above the destruction of individual persons. Suffice it here to say that whatever is the value of a group, and the disvalue of the loss of a group due to genocide, that value need not be dependent on the group having objective existence. Indeed, I have argued that the best way to characterize such value, and disvalue, is in terms of how individuals are affected when they lose a part of their identity or when others who share significant history with them no longer feel able to protect their rights in various ways.15
15See Larry May, “How Is Humanity Harmed by Genocide?”11(1)International Legal Theory (Summer2005),1–23.
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