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Chapter 4 Lemkin’s Law

“Only man has law…You must build the law!”

—Raphael Lemkin

The Nuremberg Beginning

With the end of war in Europe on May 8, 1945, and the Allied liberation of the Nazi death camps, the scale of Hitler’s madness had been revealed. Practically all that had sounded far-fetched proved real. Some 6 million Jews and 5 million Poles, Roma, Communists, and other “undesirables” had been exterminated. American and European leaders saw that a state’s treatment of its own citizens could be indicative of how it would behave toward its neighbors. And though sovereignty was still thought to be sacrosanct, a few scholars had begun gently urging that it not be defined so as to permit slaughter.¹

Raphael Lemkin had never needed much encouragement, but Allied rhetoric made him believe that the world might be ready to listen. If genocide were to be prevented or punished, “genocide” would need more than a place in Webster’s. Naming the crime was just a first step along the road to banning it. That road would prove a long one. Law had of course been one tool among many used and abused to facilitate the destruction of the Jews. Hans Frank, former German minister of justice, had summed up a core Nazi premise when he said, “Law is that which is useful and necessary for the German nation.” ² Nobody knew better than Lemkin the legal minutiae deployed by Germany to achieve its eliminationist ends. Yet for Lemkin this recent soiling of law only highlighted the need to restore its integrity through humane invention. A set of universal, higher norms, was needed as a backstop to national law. The “theory of master race had to be replaced,” he said, by a “theory of master morality.” ³

It would be the new United Nations that would decide whether to criminalize genocide as states had already done with piracy; forgery; trade in women, slaves, and drugs; and as they would later do with terrorism. In a letter to the New York Times, Lemkin wrote:

It seems inconsistent with our concepts of civilization that selling a drug to an individual is a matter of worldly concern, while gassing millions of human beings might be a problem of internal concern. It seems also inconsistent with our philosophy of life that abduction of one woman for prostitution is an international crime while sterilization of millions of women remains an internal affair of the state in question.⁴

If piracy was an international crime, he could not understand why genocide was not. “Certainly human beings and their cultures are more important than a ship and its cargo,” he exclaimed at a postwar international law conference in Cambridge. “Surely Shakespeare is more precious than cotton.” ⁵

Lemkin was initially quite well received in the United States. After years of getting jeered or yawned out of international law conferences, he suddenly found himself with a measure of cachet in the U.S. capital and with a standing invitation to contribute to the country’s major publications.

In Nuremberg, Germany, the three victors (and France) had set up an international military tribunal to try the leading Nazi perpetrators. The Nuremberg court was placing important dents in state armor. Indeed, it was amid considerable controversy that the Nuremberg charter prosecuted “crimes against humanity,” the concept the Allies had introduced during World War I to condemn the Turks for their atrocities against the Armenians. With Nuremberg going so far as to try European officials for crimes committed against their own citizens, future perpetrators of atrocities—even those acting under explicit state authority—could no longer be confident that their governments or their borders would shelter them from trial.

Since Nuremberg was making this inroad into state sovereignty, one might have expected Lemkin to cheer from the sidelines. In fact, he was a fierce critic of the court. Nuremberg was prosecuting “crimes against humanity,” but the Allies were not punishing slaughter whenever and wherever it occurred, as Lemkin would have wished. The court treated aggressive war ( “crimes against peace” ), or the violation of another state’s sovereignty, as the cardinal sin and prosecuted only those crimes against humanity and war crimes committed after Hitler crossed an internationally recognized border.⁶ Nazi defendants were thus tried for atrocities they committed during but not before World War II. By inference, if the Nazis had exterminated the entire German Jewish population but never invaded Poland, they would not have been liable at Nuremberg. States and individuals who did not cross an international frontier were still free under international law to commit genocide. Thus, although the court did a fine job building a case against Hitler and his associates, Lemkin felt it would do little to deter future Hitlers.

In May 1946 Lemkin turned up in the rubble of Nuremberg as a kind of semiofficial adviser (or lobbyist) so that he could proselytize in person. He knew the charter’s terms were fixed, but he hoped to get “genocide” incorporated into the prosecutors’ parlance and spotlighted on the Nuremberg stage. Even if genocide were not punished, at least the court could help popularize the new term. Lemkin had been teaching part time at Yale Law School. He convinced the dean, Wesley Sturges, to grant him leave on the grounds that it was better to develop international law than to teach it.

Lemkin had spent most of his time since the war’s end tracking down his missing family members. In Nuremberg he met up with his older brother, Elias; Elias’s wife; and their two sons. They told him that they were the family’s sole survivors. At least forty-nine others, including his parents, aunts, uncles, and cousins, had perished in the Warsaw ghetto, in concentration camps, or on Nazi death marches.⁷ In the words of one lawyer who remembers Lemkin roaming around the corridors at the Nuremberg Palace of Justice, he was “obviously a man in pain.”

If Lemkin was relentless before, the loss of his parents pressed him into overdrive. He spent his days buttonholing lawyers in the halls of the Palace of Justice. Some were sympathetic to his graphic war stories. Others were irritated. Benjamin Ferencz was a young lawyer on Nuremberg prosecutor Telford Taylor’s staff, which was building a case against the Einsatzgruppen, the mobile killing units that butchered Jews in Eastern Europe. He remembers Lemkin as a disheveled, disoriented refugee less concerned with hanging the Nazi war criminals than with getting genocide included in the tribunal’s list of punishable crimes. Most of the prosecutors tried to avoid him, seeing him as a nag or, in Yiddish, a nudnik. “We were all extremely busy. This new idea of his was not something we had time to think about,” Ferencz recalls. “We wanted him to just leave us alone so we could convict these guys of mass murder.”

Lemkin did score an occasional victory. Because of his prior lobbying efforts, the third count of the October 1945 Nuremberg indictment had stated that all twenty-four defendants “conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories.” This was the first official mention of genocide in an international legal setting. On June 26, 1946, British prosecutor David Maxwell Fyfe cheered Lemkin by telling Nazi suspect Constantin von Neurath, “Now, defendant, you know that in the indictment in this trial we are charging you and your fellow defendants, among other things, with genocide.” ⁸ Lemkin wrote Fyfe that summer to thank him “for your great and so effective support which you lent to the concept of Genocide.” He also urged Fyfe to get “genocide” included in the Nuremberg judgment.⁹

In late 1946 a weary Lemkin flew from Germany to a pair of peace conferences in England and France. His proposal was again rejected, here on the grounds that he was “trying to push international law into a field where it did not belong.” “Afterward he was admitted to an American military hospital in Paris with high blood pressure.¹⁰ No sooner did he land in the hospital ward than he caught two stories on the radio that convinced him he had to return to the United States immediately. First, on what he would later call the “the blackest day” of his life, he heard the pronouncement of the Nuremberg tribunal. Nineteen Nazi defendants were convicted of crimes against peace, war crimes, and crimes against humanity. No mention was made of genocide. But Lemkin heard a second item: The new UN General Assembly had begun deliberating the contents of its autumn agenda. Lemkin checked himself out of the hospital and flew to New York. On the plane he drafted a sample General Assembly resolution condemning genocide.

Closing the Loophole: Moving from Word to Declaration

Lemkin’s aim in New York was to establish an international law that did not link the destruction of groups to cross-border aggression, which accompanied genocide in the Nazi case but often would not. Nuremberg, he noted, had made “an advance of 10 or 20 percent” toward outlawing genocide.¹² It had left far too many loopholes through which killers could squirm. Statesmen were interested in preventing war, but they had less interest in genocide. “Genocide is not war!” he wrote, “It is more dangerous than war!”¹³ War, of course, has killed more individuals in history than has genocide, and it too leaves its survivors permanently scarred. But Lemkin argued that when a group was targeted with genocide—and was effectively destroyed physically or culturally—the loss was permanent. Even those individuals who survived genocide would be forever shorn of an invaluable part of their identity.

On October 31, 1946, Lemkin arrived at the newly improvised UN headquarters, located in an abandoned Sperry Gyroscope war plant on Long Island.¹⁴ The entrenched and somewhat impenetrable UN of today was then unimaginable. Security guards were willing to look the other way when the unaccredited, somewhat fanatical lawyer would turn any empty UN office into his home for the day—“like a hermit crab,” a Hungarian friend said.¹⁵ Lemkin spent endless hours haunting the drafty halls.

Kathleen Teltsch and A. M. Rosenthal were then cub reporters with the New York Times. Both were fond of Lemkin but recall the horror of many a correspondent and diplomat when the wildeyed professor with steelrimmed glasses and a relentless appetite for rejection began sprinting after them in the corridors, saying, “You and I, we must change the world.” Teltsch remembers:

He was always there like a shadow, a presence, floating through the halls and constantly pulling scraps of paper out of his pockets. He was not loved because he was known as a time consumer. If he managed to nab you, you were trapped. Correspondents on deadline used to run from him like mad. But he would run after them, tie flopping in the air, genocide story at the ready.

Rosenthal occupied the desk nearest the door of the New York Times office, where Lemkin popped his head in several times a day offering a new angle on the genocide story. “I don’t remember how I met him,” Rosenthal says, “but I remember I was always meeting him.” Carrying his black briefcase, he would say, “Here is that pest, that Lemkin…I have a genocide story for you.”¹⁶

Most of the correspondents who bothered to notice Lemkin wondered how he made ends meet. He was learned enough to maintain a quiet dignity about him, but his collar and cuffs were frayed at the edges, his black shoes scuffed. The journalists frequently spotted him in the UN cafeteria cornering delegates, but they never saw him eat. In his rush to persuade delegates to support him, he frequently fainted from hunger. Completely alone in the world and perennially sleepless, he often wandered the streets at night.¹⁷ A New York Post reporter described him as growing “paler, thinner and shabbier” as the months passed. He seemed determined to stay in perpetual motion.

However irritating the correspondents and delegates found Lemkin, his efforts in New York were well timed. The images of Allied camp liberations remained fresh in people’s minds; the Nuremberg proceedings had fueled interest in international law; the United Nations had high hopes for itself as a collective security body; and powerful member states seemed prepared to invest clout and resources toward ensuring its success. Around the world, even in the United States, people believed in the UN’s promise. The organization carried with it a grand air of possibility. When UN planners had met in San Francisco in 1945 to complete the UN charter, E. B. White summed up the hopes of many. “The delegates to San Francisco have the most astonishing job that has ever been dumped into the laps of a few individuals,” White wrote. “On what sort of rabbit they pull from the hat hang the lives of most of us, and of our sons and daughters.”¹⁸

The United Nations was new; it was newsworthy; and if you wanted something done, it was the place to bring your proposal.¹⁹ Many advocates peddled schemes to the new body. But diplomats quietly learned to distinguish Lemkin (thanks to hefty packages that he thrust upon them containing his memos, letters, and his 712-page Axis Rule). He was the one who had foreseen the need to ban genocide ahead of World War II. Indeed, when the UN delegates in the new General Assembly began debating whether to pass a resolution on genocide, Lemkin beamed as Britain’s UN delegate pointed out that the League of Nation’s failure to accept Lemkin’s Madrid proposal had allowed the Nazis to escape punishment at Nuremberg for the atrocities they committed before the war.

Ten years of lobbying had taught Lemkin to play up both the values at stake and the interests. He stressed the costs of genocide not only to victims, with whom few in New York would identify, but also to bystanders. The destruction of foreign national or ethnic identities would bring huge losses to the world’s cultural heritage. All of humankind, even those who did not feel vulnerable to genocide, would suffer:

We can best understand this when we realize how impoverished our culture would be if the peoples doomed by Germany, such as the Jews, had not been permitted to create the Bible, or to give birth to an Einstein, a Spinoza; if the Poles had not had the opportunity to give to the world a Copernicus, a Chopin, a Curie; the Czechs, a Huss, a DvoYík; the Greeks, a Plato and a Socrates;the Russians, a Tolstoy and a Shostakovich.²⁰

With time running out in the General Assembly session, Lemkin homed in on the ambassadors from several developing countries and urged them to introduce a resolution on genocide. His logic—“large countries can defend themselves by arms; small countries need the protection of the law”—proved persuasive. After convincing the Panamanian, Cuban, and Indian representatives to sign a draft resolution, he rushed “like an intoxicated man” to the office of the secretary-general, where he deposited the proposed text.²¹ Lemkin also got essential support from Adlai Stevenson, the U.S. representative on the UN Steering Committee. Hoping to neutralize anticipated Soviet opposition, he called upon Jan Masaryk of Czechoslovakia. Ahead of the meeting, Lemkin had hurriedly reviewed the works of Masaryk’s father, Thomas Gatfigue Masaryk, who had written extensively on the cultural personality of nations. Lemkin told Masaryk that if his father were alive, he would be lobbying for the passage of the genocide convention. Lemkin urged him to win over the Russian foreign minister, Andrei Vishinsky, saying that the Soviet Union had nothing to fear from the law, as “penicillin is not an intrigue against the Soviet Union.” Masaryk pulled out his appointment calendar for the next day and jotted: “Vishinsky. Genocide. Penicillin.” He called Lemkin within twenty-four hours to inform him that he had persuaded Vishinsky to support the measure.²²

As the language for the genocide resolution was batted around the special committee, some proposed using the word “extermination” instead of “genocide.” But Judge Abdul Monim Bey Riad of Saudi Arabia, whom Lemkin considered the most sophisticated of all representatives, pleaded that “extermination” was a term that could also apply to insects and animals. He also warned that the word would limit the prohibited crime to circumstances where every member of the group was killed. Lemkin’s broader concept, “genocide,” was important because it signaled destruction apart from physical destruction and because it would require states to respond before all the damage had been done. The more expansive term “genocide” was preserved.

On December 11, 1946, one year after the final armistice, the General Assembly unanimously passed a resolution that condemned genocide as “the denial of the right of existence of entire human groups,” which “shocks the conscience of mankind” and is “contrary to moral law and to the spirit and aims of the United Nations.” More gratifying to Lemkin, who was no fan of declarations, the resolution tasked a UN committee with drafting a full-fledged UN treaty banning the crime. If that measure passed the General Assembly and was ratified by two-thirds of the UN member states, it would become international law.

A New York Times editorial proclaimed that the resolution and the ensuing law would mark a “revolutionary development” in international law. The editors wrote, “The right to exterminate entire groups which prevailed before the resolution was adopted is gone. From now on no government may kill off a large block of its own subjects or citizens of any country with impunity.”²³ Lemkin returned to his rundown one-room apartment in Manhattan, pulled down the shades, and slept for two days.²⁴

Closing the Loophole: Moving from Resolution to Law

At the behest of UN Secretary-General Trygve Lie, Lemkin helped prepare the first draft of the UN genocide convention.²⁵ When the official UN process kicked in, however, the Polish lawyer bowed out, knowing he could be more valuable on the outside. In 1947 Lemkin began work on a history of genocide and carried a thick file folder bulging with gruesome details on various cases. He took his cause and himself exceptionally seriously. Later, with full sincerity, he wrote that “of particular interest” to UN delegates were his “files on the destruction of the Maronites, the Herreros in Africa, the Huguenots in France, the Protestants in Bohemia after the Battle of White Mountain, the Hottentots, the Armenians in 1915 and the Jews, gypsies and Slavs by the Nazis.”²⁶ Many stuffy UN delegates would eventually agree to vote for the proposed convention simply in order to bring the daily litany of carnage to as rapid an end as possible.

This was a crucial phase. If he kept up the pressure, Lemkin believed the law would at last be born. Rosenthal often challenged Lemkin with the realist reproach: “Lemkin, what good will it do to write mass murder down as a crime; will a piece of paper stop a new Hitler or Stalin?” Lemkin, the believer, would stiffen and snap: “Only man has law. Law must be built, do you understand me? You must build the law!” As Rosenthal notes, “He was not naive. He didn’t expect criminals to lay down and stop committing crimes. He simply believed that if the law was in place it would have an effect—sooner or later.”²⁷

For a legal dreamer, a man with no experience in Polish politics, and a newcomer to the American and UN political processes, Lemkin had surprisingly sharp political instincts. He had learned one lesson during the Holocaust, which was that if a UN genocide convention were ever to come to pass, he would have to appeal to the domestic political interests of UN delegates. He obtained lists of the most important organizations in each of the UN member states and assembled a committee that spoke for groups in twenty-eight countries and claimed a remarkable joint membership of more than 240 million people. The committee, which was more of a front for Lemkin, compiled and sent petitions to each UN delegate urging passage of the convention. UN diplomats who hesitated received telegrams—usually drafted by Lemkin—from organizations at home. He used the letters to make delegates feel as if “by working for the Genocide Convention,” they were “representing the wishes of their own people.”²⁸ Lemkin wrote personally to UN delegates and foreign ministers from most countries. In Catholic countries he preached to bishops and archbishops. In Scandinavia, where organized labor was active, he penned notes to the large labor groups. He cornered intellectuals like Pearl Buck, Bertrand Russell, Aldous Huxley, and Gabriela Mistral, who published an appeal in the New York Times on November 11, 1947. A Times editorial branded Lemkin “the man who speaks through sixty nations.”

Although Lemkin was determined to see genocidal perpetrators prosecuted, he did not believe the genocide convention should itself create a permanent international criminal court. The world was “not ready,” he said, as the court would mark too great an affront to state sovereignty. Instead, under the “universal repression” principle, genocidists should be treated as pirates had been in the past: Any country could try a genocide suspect, regardless of where the atrocities were committed.

In August 1948 Lemkin cobbled together the funds to fly to Geneva to lobby the UN subcommittee that was overseeing the drafting of the actual text of the genocide convention.²⁹ No longer working at the State Department or teaching, he lived off donations from religious groups and borrowed from a cousin who lived on Long Island. He found his stay in Geneva eerie, as it was the first visit he had paid to the former home of the League of Nations since 1938, when he had lobbied “paralyzed minds” to prohibit barbarity. With “the blood…not yet dried” in Europe, he hoped his plea would be heard differently this time. He also knew that he had a distinct advantage operating in Geneva rather than New York because the UN delegates, away from their headquarters, were likely to be lonelier and more prepared to endure him. Lemkin knew he grated on people’s nerves. Often, before entering a room, he would pause outside and make a pledge to himself not to bring up genocide and instead allow the conversation to drift from art to philosophy to literature, subjects in which he was fluent. If he could bring himself to hold his tongue, he told himself, eventually his companion would be better disposed to his campaign. When he delivered formal lectures on genocide in Geneva, he was less shy. “I did not refrain from reading aloud from my historical files in considerable detail,” he wrote.³⁰ Indeed, he rarely censored his graphic tales of torture and butchery.