A Problem From Hell: America and the Age of Genocide (11 page)

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 Lenikin 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.' 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."' Indeed, he rarely censored his graphic tales of torture and butchery.

Wherever the law went, Lemkin followed. He decided to prepare for the September 1948 General Assembly session with a short rest near Montreux, France. Lemkin recovered some of the strength sapped by years of unceasing commotion. While visiting a local casino, he even invited a young lady to dance a tango. He was captivated by her beauty and recalled, "Every word the girl said was intelligent and meaningful." She told him she was of Indian descent, born in Chile. Lemkin saw his opening: He informed her that his work on mass slaughter would be of particular interest to her because of the destruction of the Incas and the Aztecs." This was one pickup line the young woman had probably never heard before. She soon departed.

When he returned to Geneva, Lemkin attended every single session of the Legal Committee. In between sessions he prepared memos for the delegates." He felt it essential that they draw upon historic cases of mass atrocity so the law would capture a variety of techniques of destruction. He ritually reminded the representatives of the old maxim that the "legislator's imagination must be superior to the imagination of the criminal"" The convention's chief opponent in Britain was Hartley Shawcross, who had prosecuted the Nazi defendants at Nuremberg and considered the genocide law a waste of time. Shawcross ran into Lemkin in the hall in the fall of 1948 and remarked, "The Committee is becoming emotional, this is a bad sign." Lemkin, who was so tired that he could hardly stand up, was heartened." The Legal Committee approved the draft and submitted it to the General Assembly, which scheduled a vote on the measure for December 9, 1948.

After a bruising year of drafting battles, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide settled on a definition of genocide as

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 the 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.

For a party to be found guilty of perpetrating this new crime of genocide, it had to (1) carry out one of the aforementioned acts, (2) with the intent to destroy all or part of (3) one of the groups protected. The law did not require the extermination of an entire group, only acts committed with the intent to destroy a substantial part. If the perpetrator did not target a national, ethnic, or religious group as such, then killings would constitute mass homicide, not genocide.

Lemkin of course opposed all forms of state-sponsored murder, but his legal efforts were focused on the subset of state terror that he believed caused the largest number of deaths, was the most common, and did the most severe long-term damage-to the targeted groups themselves and to the rest of society. The perpetrator's particular motives for wanting to destroy the group were irrelevant. Thus, when Iraq sought in 1987-1988 to purge its Kurdish minority on the grounds that it inhabited a vital border area, it was still genocide. When the Rwandan government tried to exterminate the country's Tuts] minority in 1994, claiming that armed Tutsi rebels posed a military threat, it was still genocide. And when the Bosnian Serbs tried to wipe out the non-Serb presence in Bosnia after the Muslims and Croats had declared independence from Yugoslavia in 1992, it was still genocide. What mattered was that one set of individuals intended to destroy the members of a group not because of anything they did but because of who they were. If the General Assembly passed the convention, nobody would be immune from punishment-not leaders, public officials, nor private citizens.The treaty would enshrine a new reality: States would no longer have the legal right to be left alone. Interfering in a genocidal state's internal affairs as Morgenthau had tried to do was not only authorized but required by the convention. If a government committed or permitted genocide, signatories would have to take steps to prevent, suppress, and punish the crime, which no instrument had ever required before. States had considerable autonomy in deciding what steps to take, but they were expected to act.The convention could be read to permit military intervention. The law even implied its necessity by enshrining a legal duty to "suppress" the crime, but neither the law nor the law's drafters discussed the use of force. It was a large enough leap to convince a state's leaders to denounce or punish the cringes of a fellow state.

The genocide convention boldly closed many of Nuremberg's loopholes. It made states (and rebels) liable for genocide regardless of whether they trespassed across an internationally recognized frontier or committed aggression against another state. 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 cor don 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."" 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." 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""

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, Evart 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.'"

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 NewYork Tinies 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."" 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.""' The man who for so long had insisted on imposing himself upon journalists now waved them off, pleading, "Let me sit here alone."" 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""

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. Lenikin offered his own account of his ailment: "Genociditis," he said, or "exhaustion from work on the Genocide Convention""

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"'

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.