A Problem From Hell: America and the Age of Genocide (87 page)

2. Raphael Lemkin, Axis Rule in Occupied Europe: Laws ?f Occupation, Analysis of Government, Proposals for Redress (Washington, D.C.: Carnegie Endowment for International Peace, Division of International Law, 1944), 3. 31, n. 25. See Ingo Muller, Hitler's justice: The Courts of the Third Reich, trans. Deborah Schneider (Cambridge, Mass.: Harvard University Press, 1991).

3. Mark Mazower, Dark Continent: Europe's Twentieth Century (NewYork: Knopf, 1998), p. 197.

4. Letter to the editor, New York Times, November 8, 1946.

5. Robert Merrill Bartlett, They Stand Invincible: Men Who Are Reshaping Our World (New York: Thomas Y. Crowell, 1959), p. 102.

6. Critics, of course, railei against the Nuremberg court for its ex post facto lawmaking. They said the ban on crimes against humanity was introduced after the crimes had been committed. Tribunal defenders pointed to customary law and argued that perpetrators of these horrid acts could not have thought they were acting within legal bounds when they exterminated unarmed civilians. They also argued that most nations had pledged to outlaw aggression in 1925 in the Kellogg-Briand Pact. Recuiring the link to aggression also technically immunized Allied soldiers against prosecution for war crimes and crimes against humanity, since the Nazis, and not the Allies, were the original invaders. But this was not a motivation for the jurisdictional decision, as the subject of Allied wartime transgressions was rarely raised at the time.

7. Bartlett, They Stand Invincible, p. 102. Lemkin learned that the main part of the town where his parents lived had been burned down, and the population of some 20,000 people had been crowded into a ghetto near the railway station. In his autobiography Lemkin wrote, "This happened more than a year prior to moving my parents, together with others, to , to be gassed." It seems Lemkin never learned where his parents were murdered. Raphael Lemkin,"Totally Unofficial: The Autobiography of Raphael Lemkin;' ch. 6, p. 105.

8. British prosecutor Hartley Shawcross also used the term several times in his summation. Waldemar Kaempffert,"Genocide Is the New Name for the Crime Fastened on the Nazi Leaders," New York Times, October 20, 1946, p. E13.

9. William Korey, An Epitaph for Raphael Lemkin (NewYork: Jacob Blaustein Institute for the Advancement of Human Rights, 2001), p. 25.

10. Herbert Yahraes, "He Gave a Name to the World's Most Horrible Crime," Collier's March 3, 1951, p. 56.

11. Lassa Oppenheim, International Lawv, 7th ed., vol. 1, ed. Hersch Lauterpacht (London: Longmans, 1948), p. 583, declared that it was "generally recognized that a state is entitled to treat its own citizens at its discretion and that the manner in which it treats them is not a matter in which international law, as such, concerns itself." When it came to humanitarian intervention, "by virtue of its personal and territorial supremacy, a state can treat its own nationals according to discretion."

12. "Anti-Genocide Gains Termed Significant," Neu, York Times, December 20, 1947, p. 8.

13. Raphael Lemkin, The Importance of the Convention;' p. 2, reel 2, Lemkin Papers, New York Public Library.

14. The organization used a converted indoor skating rink at Flushing Meadow (twenty minutes away) for General Assembly sessions. This was the UN's last stop before moving into permanent headquarters at Turtle Bay.

15. Kathleen Teltsch, "The EarlyYears," in A Global Affair: An Inside Look at the United Nations, ed. Amy Janello and Brennon Jones, p. 12.

16. A. M. Rosenthal, "A Man Called Lemkin," New York Times, October 18, 1988, p. A31.

17. Bartlett, They Stand Invincible, p. 103. One night his insomnia paid off. In August 1948, as he strolled around Lake Leman in Geneva in the early hours of the morning, Lemkin bumped into the Canadian ambassador, David Wilgress, who also could not sleep. Lemkin seized his chance, charming the Canadian, a history buff, with stories about the Athenians' atrocities in Mytilene, the Mongols' genocide, and the slaughter of the Armenians. Lemkin's new friend introduced him to Herbert Evatt, who was the president of the General Assembly. With Evatt's support, Lemkin said he no longer felt like a "petitioner" but more like a "full-fledged partner." Lemkin,"Autobi- ography," ch. 10, pp. 13, 15.

18. White proceeded: "If [the UN planners] put on their spectacles and look down their noses and come up with the same old bunny, we shall very likely all hang separately-nation against nation, power against power, defense against defense, people (reluctantly) against people (reluctantly). If they manage to bring the United Nations out of the bag, full blown, with constitutional authority and a federal structure having popular meaning, popular backing, and an over-all authority greater than the authority of any one member or any combination of members, we might well be started on a new road" E. B. White, "Notes and Comment," New Yorker, February 24, 1945, p. 17.

19. In the early years of the UN, all of the major newspapers and wire services posted between a half dozen and a dozen correspondents at UN headquarters. This is a far cry from today, when many media do not staff the UN and when those that do post only one or, in the case of the wires, two reporters.

20. Raphael Lemkin, "Genocide," American Scholar 15, 2 (1946): 228.

21. Lemkin,"Autobiography," ch. 9, p. 8.

22. Ibid., p. 14.

23. "Genocide Under the Law of Nations," New York, Tirnes, January 5, 1947, p. E11.

24. Korey, An Epitaph for Raphael Lemkin, p. 29.

25. This draft called for the establishment of an "International Office for the administration of all matters" related to the genocide convention, which would gather data on the causes of genocide and make recommendations for alleviating the crime. Each contracting office would also set up national offices linked to the head office in order to gather the names of the perpetrators, details on their genocidal techniques, and recommendations for punishment and prevention. These offices were far more threatening to state sovereignty than a mere law and were thus dropped from later drafts. Ibid., pp. 30-31.

26. Raphael Lemkin,"The Evolution of the Genocide Convention,' p. 7, reel 2, Lemkin Papers, NewYork Public Library.

27. Rosenthal, "A Man Called Lemkin"

28. Lemkin, "The Evolution of the Genocide Convention," p. 5.

29. In 1948 the Economic and Social Council (ECOSOC) of the United Nations appointed an Ad Hoc Committee on Genocide composed of representatives from China, France, Lebanon, Poland, the United States, the Soviet Union, and Venezuela. This committee unanimously adopted a draft, which the council transmitted to the General Assembly in August 1948. The General Assembly in turn referred the report to the assembly's Sixth Committee, which devoted fifty-one meetings in two months to discussing and amending the convention.

30. See Lemkin, "Autobiography," ch. 10, pp. 5-8.

31. Ibid., p. 22.

32. General Assembly president Evart, Lemkin's friend, allowed him to handpick the chairman of the Legal Committee. In order to avoid delay, Lemkin also rallied a number of delegations to support the idea of avoiding the standard UN practice of requiring passage first in a subcommittee. In this instance the Legal Committee alone would prepare the final draft. It had two early drafts to work from-one that had been prepared by the Secretariat with Lemkin's participation in 1947 and the other prepared by the Special Committee of ECOSOC in May 1948 with Lemkin's behind-the-scenes influence.

33. Lemkin,"Autobiography," ch. 11, p. 27.

34. Although the law moved ahead, Lemkin was dismayed to learn that a pair of clauses were being inserted that limited the initial duration of the law to ten years if sixteen states stepped forward to denounce it and allowed for revisions to the text after a certain number of years. Lemkin was too exhausted and too desperate to fight these additions but later said that he "felt like a babysitter who takes a nap at the wrong time." Opponents had put "blows and knives" into the newborn baby so that it would later die. As it happened, these provisions were never invoked, but Lemkin could not know that at the time. His fear that the convention would perish heightened his paranoia in the years ahead. Lemkin, "Autobiography," ch. 11, p. 58; ch. 13, p. 36.

35. "Genocide and the UN," Washington Post, November 9, 1946, p. 8.

36. The United Nations was then composed of fifty-eight member states (twenty-one from the Americas, sixteen from Europe, fourteen from Asia, four from Africa, three from Oceania).

37. Lemkin,"Autobiography," ch. 12, p. 59.

38. "U.N.Votes Accord Banning Genocide," New York, Times, December 10, 1948, p. 12.

39. John Hohenberg, "The Crusade That Changed the UN," Saturday Rei'icnv, November 9, 1968, p. 87.

40. Rosenthal, "A Man Called Lemkin"

41. Teltsch, "Library Show Recalls Man Behind Treaty on Genocide."

42. Lemkin, "Autobiography," ch. 1.

43. Ibid., ch. 12, p. 61.

Chapter 5, "A Most Lethal Pair of Foes"

1. Reel 4,Lemkin Papers, NewYork Public Library.

2. Because several countries had ratified the convention nearly simultaneously, there were actually twenty-one "ratifications without reservation": Australia, Cambodia, Costa Rica, Ecuador, El Salvador, Ethiopia, France, Guatemala, Haiti, Iceland, Israel, Jordan, Liberia. Monaco, Norway, Panama, Republic of Kor,_a, Saudi Arabia, Sri Lanka, Turkey, and Yugoslavia. Bulgaria and the Philippines also ratified the Genocide Convention by mid-October 1950, but with reservations. The genocide convention formally entered into force on January 12, 1951. "Pact on Genocide Effected by U.N.," Neu, YorkTunes, October 15, 1950, p. 23.

3. Steven Schnur, "Unofficial Man: The Rise and Fall of Raphael Lemkin," Reform Judaism, Fall 1982, p. 11. In the New York Times the day after the convention was ratified, Lemkin was pictured in a photo beside a short story from UN headquarters at Lake Success. The grainy photo, which was captioned "UN Representatives Ratify Pact Against Genocide," depicts Lemkin in a conspicuous light-colored suit in the back row. In front of him are the dark-suited representatives of the latest tour ratifiers, Korea, Haiti, France, and Costa Rica, as well as the president of the General Assembly, Nasrollah Entezam of Iran. Alongside him are Ivan Kerno, the assistant secretarygeneral for legal affairs;Trygve Lie, the secretary-general; and Fernando Fournier of Costa Rica. Others in the photo are identified by their titles; Lemkin, staring at the camera blankly, is described simply as "chief proponent of the pact" "U.N. Representatives Ratifying Pact Against Genocide." New York Times, October 17, 1950, p. 18.

4. Senate Committee on Foreign Relations, 'Die Genocide Convention: Hearings Before the Senate Subcommittee on the International Convention on the Prevention and Punishment of the Crime of Genocide, 81st Cong., 2nd sess., 1950, p. 15.

5. Ibid., pp. 204-205.

6. Lemkin, "The Truth About the Genocide Convention," p. 2, reel 3, Lemkin Papers, New York Public Library.

7. A pair of UN studies of the convention later attempted to clarify the meaning of its text. In 1978 N. Ruhashyankiko's Study on the Question of the Prevention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/416 (1978), pp. 14-15, reflected on the Sixth Committee debate and found it "sufficient that an act of genocide should have as its purpose the partial destruction of a group.... It was not necessary to kill all the members of a group in order to commit genocide." The UN Subcommission on Prevention of Discrimination and Protection of Minorities, Revised and Updated Report on the Question of Prevention and Punishment of the Crime of Genocide (the Whitaker Report), UN Doc. E/CN.4/Sub.2/ 1985/6 (1985), p. 18, found that the phrase "in part" "would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership." Concerned that too broad an interpretation might devalue the "gravity of the concept of genocide;' the special rapporteur recommended consideration of proportionate scale and total numbers. "Other attacks and killings do, of course, remain heinous crimes," he noted, "even if they fall outside the definition of genocide."

8. See Ward Churchill, A Little Matter of Genocide: Holocaust and Denial in the Americas, 1492 to the Present (San Francisco: City Light Books, 1997).

9. In fact, the Chinese representative had intended the "mental harm" provision to cover "genocide by narcotics." which the Japanese occupiers had used as a weapon against the Chinese in World War II, permanently impairing their mental facilities and destroying their will to resist. UN, Report of the Ad Hoc Committee on Genocide, Economic, and Social Council, Official Records: third year, seventh sess., suppl. no. 6, April 5-May 10, 1948, p. 15; Sixth Committee, pp. 177, 179. As Adrian Fisher, the State Department legal adviser, testified in 1950, the mental harm provision would apply to violent acts aimed at doing permanent injury to a victim's mental faculties. It would not apply to "embarrassment or hurt feelings, or even the sense of outrage that comes from such action as racial discrimination or segregation, however horrible those may be" Senate Committee on Foreign Relations, The Genocide Convention, pp. 263-264.

10. Raphael Lemkin to Gertrude Samuels,June 6, 1950, reel 1, Lemkin Papers, New York Public Library.

11. Hearings on the Genocide Convention, p. 132.

12. LeBlanc, Vic United States and the Genocide Convention (Durham, N.C.: Duke University Press, 1991), p. 20. The transcripts of the executive sessions of the Senate Foreign Relations Committee are not made available to the public for twenty-five years. See Executive Sessions of the Senate Foreign Relations Committee, Historical Series, 1976, p. 645.

13. Those who opposed including political groups also claimed that unlike ethnic or national groups, political groups were not sufficiently "cohesive" or recognizable. Of course religious groups, which were covered, also lacked ready identifiers. In addition, religious preference was as mutable as political affiliation.

14. Lemkin had hoped to ban cultural genocide, as he had long been convinced that the destruction of language, libraries, churches, and traditions was both a savage wrong in its own right and often a prelude to nmrd,r. He liked to say, "First they burn books and then they start burning bodies." But he gave up the battle to punish the destruction of language, monuments, archives, and other cultural foundatiors when he realized that time was running out in the General Assembly session. The Legal Committee was not supportive, and he could not afford to see the vote postponed until the following year because there was no guarantee the next president of the General Assembly (after Evart) would support the law. He consoled himself that he could try to get the UN to adopt an additional protocol later. In the words of Joel Wolfsohn of the American Jewish Committee, Lemkin was "willing to throw anything and everything overboard in order to save a ship." William Korey, An Epitaph jr Raphael Lemkin (New York: Jacob Blaustein Institute for the Advancement of Human Rights, 2001), p. 39, quoting a letter given to him by James Fussell.