A Problem From Hell Page 10
The genocide convention boldly closed many of Nuremberg’s loopholes. It made states (and rebels) liable for genocide regardless of whether they committed aggression against another country or attacked only their internal “enemies.” Peacetime or wartime, inside a country or outside, the 1948 treaty made no distinction.
The convention’s enforcement mechanisms were more explicit about punishment than prevention. A state signatory would be bound to pass a domestic genocide law and to try any private citizen or public official for genocide committed on or outside its territory. Countries would try their own genocide suspects as well as those who wandered inside their borders. This left gaps. In the case of postwar Germany, for instance, it would have meant relying principally on former members of the Nazi Party to try Nazi criminals. Still, even if those responsible for genocide continued to hold power, they would be reluctant to leave their country and risk arrest. The basic idea, as the Washington Post noted in one editorial endorsing the criminalization of genocide, was that the law “would throw a sort of cordon sanitaire around the guilty nation.” Genocide perpetrators would be trapped at home, and “the sort of persecution of helpless minorities which has hitherto gone unrebuked” would be stigmatized. “Genocide can never be the exclusive internal concern of any country,” the editorial concluded. “Wherever it occurs, it must concern the entire civilized world.”35 If the convention were passed, genocide would become everybody’s business.
Lemkin thought December 9, 1948, would never arrive. When it did, he stood in the press galley of the Palais de Chaillot in Paris and kept his eyes trained on the General Assembly debate, restraining himself from interjecting. Finally, the vote arrived. Fifty-five delegates voted yes to the pact. None voted no. Just four years after Lemkin had introduced “genocide” to the world, the General Assembly had unanimously passed a law banning it.36 Lemkin remembered:
There were many lights in the large hall. The galleries were full and the delegates appeared to have a solemn radiating look. Most of them had a good smile for me. John Foster Dulles told me in a somewhat businesslike manner that I had made a great contribution to international law. The Minister of Foreign Affairs of France, [Robert] Schumann, thanked me for my work and said he was glad that this great event took place in France. Sir Zafrullah Khan said this new law should be called the “Lemkin Convention.” Then Dr. Evatt put the resolution on the Genocide Convention to a vote. Somebody requested a roll call. The first to vote was India. After her “yes” there was an endless number of “yeses.” A storm of applause followed. I felt on my face the flashlight of cameras. . . . The world was smiling and approving and I had only one word in answer to all that, “thanks.”37
The world’s states committed themselves, in the words of the convention preamble, “to liberate mankind from such an odious scourge.” After announcing the result of the roll call, General Assembly president Herbert V. Evatt of Australia, whom Lemkin had befriended in Geneva, proclaimed the passage “an epoch-making event in the development of international law.” He urged that the convention be signed by all states and ratified by all parliaments at the earliest date. In a sweeping ode to the promise of the United Nations and international law, Evatt declared that the days of political intervention dressed up as humanitarianism were past:
Today we are establishing international collective safeguards for the very existence of such human groups. . . . Whoever will act in the name of the United Nations will do it on behalf of universal conscience as embodied in this great organization. Intervention of the United Nations and other organs which will have to supervise application of the convention will be made according to international law and not according to unilateral political considerations. In this field relating to the sacred right of existence of human groups we are proclaiming today the supremacy of international law once and forever.38
It marked the first time the United Nations had adopted a human rights treaty.
Nobody who was familiar with the genocide convention was unfamiliar with the man behind it. The New York Times praised the success of Lemkin’s “15 year fight.” When reporters looked for Lemkin after the vote to share his triumph, they could not find him. “Had he been in character,” remembered John Hohenberg of the New York Post, “he should have been strutting proudly in the corridors, proclaiming his own merit and the virtues of the protocol that had been his dream.”39 But he had gone missing. That evening journalists finally tracked him down, alone in the darkened assembly hall, weeping, in Rosenthal’s words, “as if his heart would break.”40 The man who for so long had insisted on imposing himself upon journalists now waved them off, pleading, “Let me sit here alone.”41 He had been victorious at last, and the relief and grief overwhelmed him. He described the pact as an “epitaph on his mother’s grave” and as a recognition that “she and many millions did not die in vain.”42
Lemkin was struck that night with a vicious fever. Two days later he was again admitted to a Paris hospital, where he remained confined for three weeks. Although the doctors thought he was suffering complications stemming from his high blood pressure, they struggled to make a firm diagnosis. Lemkin offered his own account of his ailment: “Genociditis,” he said, or “exhaustion from work on the Genocide Convention.”43
Unfortunately, though Lemkin could not know it, the most difficult struggles lay ahead. Nearly four decades would pass before the United States would ratify the treaty, and fifty years would elapse before the international community would convict anyone for genocide.
Chapter 5
“A Most Lethal Pair of Foes”
Lemkin’s Lobby
Never in history had states even resolved to prevent atrocities. But enforcement was another matter entirely. Lemkin needed to make two things happen. First, twenty UN member states that had voted for the ban in the General Assembly had to ratify it domestically in order for the treaty to become official international law. And second, the United States, the world’s most powerful democracy, would have to take the lead in enforcing the genocide ban. In the absence of U.S. participation, the League of Nations had been impotent, and the sponsors of all new initiatives at the nascent UN were determined to involve the United States at every turn. “This treaty is like a ship carrying survivors,” Lemkin wrote to himself. “It cannot be permitted to sink.”1
When it came to tallying twenty domestic ratifications, Lemkin again became a one-man, one-globe, multilingual, single-issue lobbying machine. Sifting through Lemkin’s papers, one is awed by the quantity of correspondence he maintained. He sent letters out in English, French, Spanish, Hebrew, Italian, and German. Long before computers or photocopiers, he handcrafted each letter to suit the appropriate individual, organization, or country. Occasionally, Lemkin commandeered a student assistant from Yale Law School or a volunteer from one of the Jewish groups with which he periodically allied himself, but these helpers rarely lasted under the employ of such a stringent taskmaster. Lemkin used friends, friends of friends, and acquaintances of acquaintances to familiarize himself with a country. When he wanted to know which buttons to press in Uruguay, a country he had never visited, he sent an elaborate set of questions to a distant contact. He inquired into the status of its ratification drive and asked how it approved international treaties. He wrote to the leaders of the most influential political parties, the heads of the private women’s or civic groups, and the editors of prominent newspapers. He usually asked his contact to gauge the influence of the local Jewish community. He varied his pitch. If a country had not yet ratified the convention, he appealed for haste in doing so and often attached sample legislation from Denmark, an early implementer. If a country had experienced genocide in the past, he reminded its citizens of the human costs of allowing it. But if a country had committed genocide in the past, as Turkey had done, Lemkin was willing to keep the country’s atrocities out of the discussion, so as not to scare off a possible signatory.
Convention on the Prevention and Punishment of the Crime of Genoc
ide
Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948 Entry into Force 12 January 1951, in Accordance with Article XIII
The Contracting Parties,
Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world,
Recognizing that at all periods of history genocide has inflicted great losses on humanity, and
Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required,
Hereby agree as hereinafter provided:
Article 1
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
Article 2
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 3
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
Article 4
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
Article 5
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.
Article 6
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
Article 7
Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.
Article 8
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.
Article 9
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
Articles 1–9 of the UN Convention on the Prevention and Punishment of the Crime of Genocide.
On October 16, 1950, thanks largely to this behind-the-scenes prodding, the twentieth country ratified the genocide convention.2 Thus, seventeen years after Lemkin had first proposed it, the attempted destruction of national, ethnic, and religious groups became an international crime. He told reporters, “This is a day of triumph for mankind and the most beautiful day of my life.”3
The tougher challenge was the more important one: securing ratification in the U.S. Senate and then enforcement by the United States. When the convention cleared the General Assembly in 1948, few doubted that the United States would be one of the first countries to ratify it. The UN passage had been an American effort in many respects. In 1946 Lemkin had teamed up with several State Department lawyers to prepare the first draft of the treaty. It had been U.S. delegate at the United Nations John Maktos who chaired the Ad Hoc Committee of the Economic and Social Council that assembled another version of the text in Geneva. The United States had been the first country to sign the pact at the General Assembly in 1948.
In June 1949 President Harry Truman heartily endorsed the genocide convention, calling on U.S. senators to ratify it because America had “long been a symbol of freedom and democratic progress to peoples less favored” and because it was time to outlaw the “world-shocking crime of genocide.” Dean Rusk, then deputy undersecretary of state, stressed that ratification was needed to “demonstrate to the rest of the world that the United States is determined to maintain its moral leadership in international affairs.” Securing the two-thirds Senate vote seemed a mere formality.
But American spokesmen for the convention had to look outside the realm of human rights to find examples of treaties that earned U.S. support. Rusk testified, “It should be noted that the Genocide Convention does not represent the first instance in which the United States has cooperated with other nations to suppress criminal or quasi-criminal conduct which has become a matter of international concern.” He went on, anticlimactically, to list those instances of international cooperation: “The United States is party to the multilateral Convention for Protection of Submarine Cables of 1884. . . . The United States is party to a convention of 1911 with Great Britain, Russia, and Japan for the preservation and protection of fur seals in the North Pacific Ocean.” Treaties that obliged signatories to punish those who injured submarine cables or pelagic seals did not exactly constitute the same challenge to international policymakers as the ban on genocide. Thus, there was something absurd if admirable in Rusk’s attempt to build the case that genocide convention ratification constituted the natural culmination of previous campaigns. “The United States has cooperated in the past with other nations in the suppression of such lesser offenses as the killing of fur seals,” Rusk noted. “It is natural that other nations look to the United States for cooperation in the suppression of the most heinous offense of all, the destruction of human groups.”4 Rusk would later admit in his testimony that there was no evidence the seal convention had ever been violated.
The Critics
The early U.S. leadership on the genocide treaty largely evaporated in the months and years that followed. Some of the opposition to U.S. ratification was rooted in legitimate grievances about the text of the law. The convention’s plain wording was not terribly specific about the nature of the violence that needed to occur in order to trigger a global or national response. Lemkin had wanted to create a sacrosanct category of crime that the world would team up to prevent and punish. But the new convention did not clear up confusion about the meaning of “genocide.” Far from constituting a high-bar trigger, critics claimed the genocide pact offered a low-bar trampoline.
“Genocide,” as defined in the UN treaty, suffered then (as it suffers now) from several inherent definitional problems. One is what might be called a numbers problem. On the question of how many individuals have to be killed and/or expelled from their homes in order for mass murder or ethnic cleansing to amount to genocide, there is—and can be—no consensus. If the law were to require a pre-specified percentage of killings before outsiders responded, perpetrators would be granted a free reign up to a dastardly point. The law would be little use if it kicked in only when a group h
ad been entirely or largely eliminated. By focusing on the perpetrators’ intentions and whether they were attempting to destroy a collective, the law’s drafters thought they might ensure that diagnosis of and action against genocide would not come too late. The broader, intent-based definition was essential if statesmen hoped to nip the crime in the bud.
But some U.S. senators feared the expansive language would be used to target Americans. The law’s most potent foe in the United States was the respected American Bar Association (ABA). Alfred T. Schweppe, chairman of the ABA’s Committee on Peace and Law Through the United Nations, challenged the convention’s definition of “genocide” before a U.S. Senate subcommittee hearing in 1950:
Certainly [the convention’s definition] doesn’t mean if I want to drive 5 Chinamen out of town, to use that invidious illustration, that I must have the intent to destroy all the 400,000,000 Chinese in the world or the 250,000 within the United States. It is part of a racial group, and if it is a group of 5, a group of 10, a group of 15, and I proceed after them with guns in some community to get rid of them solely because they belong to some racial group. . . . I think you have got a serious question. That is what bothers me.5
Senator Brien McMahon (D.–Conn.), the chairman of the first Senate subcommittee, who himself supported ratification, wanted answers, and this often resulted in a quest to pin down numbers. He asked, “Let us assume there is a group of 200,000. Would that have to mean that you would have to murder 100,001 before a major part would come under the definition?” Lemkin stressed that partial destruction obviously had to be “of such substantial nature that it affects the existence of the group as a group” and wrote graphically that partial destruction meant that “by cutting out the brains of a nation, the entire body becomes paralyzed.”6 In the end the McMahon subcommittee recommended including an “understanding” that the United States interpreted “in part” to mean “a substantial portion of the group concerned.” Even though this should have satisfied the senators’ need for reassurance, many ignored the proposed compromise language and continued to complain.7 Years later, when the Khmer Rouge, the Iraqi government, and the Bosnian Serbs began eradicating minority groups, those who opposed a U.S. response often ignored the genocide convention’s terms and denied genocide was under way, claiming the number of dead or the percentage of the group eliminated was too small.