Lemkin and the Foundation of the Genocide Convention

Rothenberg 1
Raphael Lemkin and the Foundation of the Genocide Convention
Raphael Lemkin dedicated his life to persuading the international community to make the crime of
genocide international in the hope that it would never happen again. Lemkin coined “genocide” in a1933 proposal to
the Madrid Conference when he attempted to have “acts of barbarity” and “acts of vandalism” added to the list of
international crimes.1
However, not until the world had witnessed the Nazi atrocities of the Second World War that
the crime of genocide became recognized as international legal concept. Although Lemkin originally imagined laws
against genocide to be more inclusive, the passage and adoption of the Genocide Convention marked important
international progress.
Raphael Lemkin was born in 1900 in Wolkowysk, Lithuania, a town bordering Russia, in the midst of
Russian, Polish, and Jewish culture. Living in a contested borderland over which multiple military forces clashed
during World War I made Lemkin aware of the diverse nationalities and their anxieties about self preservation.2
His
interest in multiculturalism inspired his study of foreign languages. After becoming proficient in Hebrew, Yiddish,
Polish, German, Russian, French, and Italian, he began to study philology, the study of language written in historical
sources.3
While studying at the University of Lvov in Poland, he became interested in the trial of Tehlirian for his
murder of Talaat, one of the leaders responsible for the mass slaughter of the Armenians during WW I. Lemkin
came to believe that the sole way for mass murder to be criminalized would have to be through international law.
After discovering the lack of international laws dealing with such crimes, he applied to law school and began to
study international law. Lemkin studied legal history, looking for a way to define the slaughter of national, racial,
and religious groups as both a legal and moral violation of international law. After working briefly as a lawyer and
public servant, he eventually ended up taking a job as a deputy public prosecutor in the Polish capital of Warsaw.4
Lemkin believed that the Warsaw Formula, a law related to the use of instruments “capable of producing a
public danger,”5
was too limited and believed it should not only cover the question of public danger but a broader
concept of transnational danger. He proposed the addition of acts of barbarity, acts of vandalism, provocation of
1
Lemkin, Raphael. "Genocide as a Crime under International Law." (The American Journal of International Law
41.1, 1947), 146
2
Cooper, John Cooper. Raphael Lemkin and the Struggle for the Genocide Convention. (New York: Palgrave
Macmillan, 2008), 24
3
Dan Eschet, Totally Unofficial: Raphael Lemkin and the Genocide Convention. (Facing History and Ourselves,
2007), 9
4
Eschet, Totally Unofficial, 9-10
5
Raphael Lemkin. “Acts Constituting a General (Transational) Danger Considered as Offences Against the Law of
Nations” (1933), 1

Rothenberg 2
catastrophes in international communications, international interruption of international communication, and
propagation of human, animal, or vegetable contagions to the Fifth conference for the Unification of Penal Law in
Madrid, from October 14th
to 20th
, 1933. He hoped his ideas would be recognized as part of the offences of the law
against nations.6
Lemkin saw offences relating to the slave trade and the trafficking of women and children to be
based on humanitarian principles. While some of his proposed offences against were concerned with the attack on
human rights, others dealt with the relations between the individual and the collectivity, or between two or more
collectives. Some combined the two, such as his conception of acts of barbarity, which viewed an attack against
individuals as a member of the collective as a crime against humanity. The goal of the executor of the crime was not
only to harm the individual, but also to cause damage to the collectivity.7
Lemkin went on to discuss acts of extermination directed against ethnic, religious, or social collectivities no
matter whether the motive was political, religious, or based on other group affiliation. Lemkin referred to this as acts
of barbarity, which he believed should constitute offences against the law of nations due to their endangerment of
both the existence of the collectivity and the entire social order. For Lemkin, acts of barbarity injured both the moral
and economic interests of the international community. These acts are often carried out in an organized and
systematic fashion, causing emigration of population, often quickly and with little time for preparation into another
state. The swift movement of fleeing immigrants often had damaging economic repercussions for both the state and
the reugees, especially when faced with the difficulties of finding employment and a lack of resources.8
Lemkin
credited Vespasien V. Pella, a Romanian jurist, for the concept of acts of barbarity, which first appeared in Pella‟s
report to the Third International Congress on Penal Law in 1933, in Palermo.9
Lemkin defined his second proposal, acts of vandalism, as an attack targeting a collectivity that organizes
the destruction of art and culture “in which the unique genius and achievement of a collectivity are revealed in fields
of science, arts and literature.”10
He believed that the destruction of any art form must be seen as an act of vandalism
directed against culture. As the perpetrator of the crime causes the destruction of a cultural work as property and
culture, there is a loss to all of humanity. Both acts of barbarity and acts of vandalism cause a shock to the
6
Raphael Lemkin. Axis Rule in Occupied Europe: Laws of Occupation - Analysis of Government - Proposals for
Redress (Washington, D.C.: Carnegie Endowment for International Peace, 1944), 91
7
Raphael Lemkin. "Acts Constituting a General (Transnational) Danger Considered as Offences Against the Law of
Nations." (1933), 1
8
Lemkin, “Acts Constituting a General (Transnational) Danger”, 1
9
William Schabas. Genocide in international law the crimes of crimes (Cambridge, U.K: Cambridge University
Press, 2000), 26
10

Rothenberg 3
conscience of all of humanity while creating anxiety for the affected group. Lemkin ended his argument by stressing
the importance of an international convention dealing with these issues to ensure the repression of these offences.11
Six years after Lemkin‟s 1933 proposal to the Fifth Conference for the Unification of Penal Law to institute
“acts of barbarity” and “acts of vandalism” as crimes under international law, the Nazis invaded Poland. Before
Warsaw was overtaken, the Polish government instructed all able bodied men to immediately leave the country.
Lemkin gathered a few of his belongings and boarded a train. When German bombers attacked the train, hundreds of
passengers died. Lemkin, however, survived and fled into the nearby woods. Determined to make it to Sweden,
where a colleague had offered him safety, he stopped to see his family in Wolkowysk in an attempt to persuade them
to join him. He was unable to convince his family and later discovered that forty-nine relatives, including his
parents, were killed during the Holocaust.12
By the spring of 1941, Lemkin reached North Carolina and began teaching international law at Duke
University. He continually tried to find a way to persuade the United States government to join the Allies in an
attempt to save minorities throughout Europe. Upon leaving Duke, Lemkin moved to Washington, D.C. where he
began working for the Board of Economic Warfare. Then, in 1944, he was recruited by the Department of War as an
expert on international law.13
In 1944, Lemkin released his first major work Axis Rule in Occupied Europe in which he defined genocide
as a crime “directed against the national group as an entity, and the actions involved are directed against individuals,
not in their individual capacity, but as members of the national group.”14
For the remainder of the chapter, Lemkin
explained how genocide should be handled under international law. Lemkin mentioned the plight of the European
minorities and a list of Nazi laws and decrees to illustrate the policies which allowed for the destruction of other
nations. His primary goal was to show how the Nazis used laws to undermine human rights and legitimize genocide.
Lemkin used the word genocide to describe an old practice in a modern context. The term is derived from
the Greek genos, meaning race or tribe, and Latin cide, meaning killing. The intention of the word was to “signify a
coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups,
with the aim of annihilating the groups themselves.”15
The word did not mean the immediate annihilation of a
11
12
Eschet, Totally Unofficial, 12
13
14
Lemkin, Axis Rule, 79
15

Rothenberg 4
nation, except when accomplished by mass killings of all members of a nation. For Lemkin, genocide occurred in
two phases. The first phase included the destruction of the national pattern of the oppressed, and the second, with the
imposition of the national pattern of the oppressor.
In Axis Rule, Lemkin discusses crimes prohibited by the Hague Regulations, such as acts that infringe upon
honor and rights and transgressions against life, private property, religion, science, or art. Yet, Lemkin did not feel
the concept was broad enough to cover the full spectrum of genocide, which he believed should be dealt with as a
whole. The concept was too important to be left to future discussions and solutions. A mechanism needed to be in
place to effectively deal with the problem whether during peace or war. He was adamant about the importance of an
international treaty that would establish guidelines for countries who wished to incorporate laws regarding genocide
to their own constitutions and criminal codes. Lemkin stressed the importance of determining penalties for both
those who ordered genocide and for those who carried it out. “Because of the special implications of genocide in
international relations, the principle of universal repression should be adopted for the crime of genocide.”16
Lemkin
was determined to put an end to genocidal practices under any circumstance.
Toward the end of chapter IX, Axis Rule Lemkin refers to international controls established to determine
whether prisoners of war are treated in accordance with international law. However, he recognized that the fate of
prisoners, women, and children were often ignored. Many of the reports smuggled out of European countries during
World War II were seen “as untrustworthy atrocity stories because they are so gruesome that people simply refuse to
believe them.”17
He proposed that the Hague Convention should be modified to include an international agency
responsible for visiting occupied countries and making inquiries about how prisoners were treated.
The German people had transformed genocide into a principle of government, and Lemkin viewed National
Socialism as the doctrine of their racial superiority. As more and more European nations were controlled by the
German Nazis, many civilians found themselves unable escape the German policy of genocide. Lemkin saw that all
aspects of nationhood were exposed to the attacks of the genocidal policy whether social, political, cultural,
religious, moral, economic, biological, or physical. As the Nazis continued their expansionist policies, countries
were weakened as they were divided into separate self contained zones. The boundaries were intentionally created to
block communication and mutual assistance, and previously effective national allegiances were impaired by the
creation of separate governing bodies. Intellectuals, who were primarily civic leaders, and those who resisted were
16
Lemkin, Axis Rule, 93-94
17

Rothenberg 5
some of the first sought out and killed. The Germans attempted to destroy occupied nation‟s cultures and traditions.
German became the official language of governments, schools, and commerce. In an attempt to prohibit national
expression, painters, musicians, writers, and actors were required to be officially licensed.18
During the Nuremberg trials, Lemkin served as an advisor to Justice Robert H. Jackson, the lead United
States prosecutor, and worked toward making sure genocide was listed in the indictment against the Nazi war
criminals. The evidence produced at the Nuremberg trials gave full support to the meaning of genocide. The
successful trials set a precedent for the prosecution of similar crimes and cemented the concept of genocide in
modern international law.19
Even though genocide had been used in the third indictment and closing arguments, the
term had not been clearly defined in the process. Lemkin was disturbed about the commitment to sovereignty, which
prevented the Allies from prosecuting German war criminals for the crimes committed within Germany prior to
German expansion. The International Military Tribunal gave a constricted interpretation to its Charter and decided
that for crimes committed before the start of the war the criminals would not be charged.20
This led Lemkin to
believe the Nazis never would have been tried if they had only persecuted the Jews, gypsies, and other minorities
within their borders. Had Lemkin‟s original proposal been accepted in 1933, many of the problems raised during the
Nuremberg trial could have been avoided. If his ideas had been incorporated into an international convention, signed
and ratified by the countries represented at the conference, the perpetrators could have detained and tried by any of
the signatory countries.21
Lemkin began attending international conferences until becoming ill in Paris and checking himself into an
American military hospital. While in the hospital he discovered that the United Nations (UN) was preparing to hold
its first meeting in Lake Success, New York. Lemkin immediately checked himself out of the hospital and flew to
New York. Upon his arrival, Lemkin began to contacting national delegations in an attempt to persuade them to
“enter into an international treaty which would formulate genocide as an international crime, providing for its
punishment in time of peace and war.”22
In areas where religion provided a major influence on national life, the Nazis were sure to undermine them
in some way or another. Many places of religious worship were destroyed and religious leaders were slaughtered.
18
Lemkin, Raphael. "Genocide - A Modern Crime." (Free World 4, 1945), 1.
19
20
Lemkin, Genocide as a Crime under International Law, 147-48
21
22

Rothenberg 6
Moral problems also arose due to Nazi policies. Alcohol prices were kept artificially low as food became sparse, and
farmers were forced to accept alcohol in exchange for their produce. The Nazis targeted the economy in order to
make survival so difficult that people would no longer have the energy or will to fight against their policies. The
genocidal policy the Nazis was based on both future and immediate objectives. German families, and others viewed
as acceptable, were encouraged to increase the birth rate, whether legitimate or not. At the same time, every possible
tactic was used to decrease the birth rate of those deemed inferior. Nearly all prisoners of war or forced laborers
were kept from their spouses. Because of malnourishment, the birth rate drastically decreased while infant mortality
increased. Germany wanted to ensure that the future generations of Europe were “to be predominately of German
blood, capable of overwhelming all other races by sheer numbers.”23
The physical destruction of the inferior races
was the ultimate goal of Nazi leadership, whether though decreased birthrates, starvation, or mass execution in gas
chambers.
In “Genocide – A Modern Crime” published in 1945, Lemkin details the international implications of
genocide, whether during peace or war. He explains that genocide affects the interests of people worldwide, arguing
that its consequences can neither be isolated or localized. If other countries tolerate genocide, they are openly
admitting that “one national group has the right to attack another because of its supposed racial superiority.”24
The
confiscation of property and economic rights of one group of citizens prevents them from being able to fulfill their
obligations to others, who are then themselves penalized. The significance of these problems, when dealing with
genocide, is enough to require the implementation of an international system of safeguards. However, international
protection of minorities was already required by a number of post-Versailles treaties, yet under these terms, the
genocidal policy of the Germans against its own Jewish citizens was considered an internal problem. The Versailles
treaties did not allow the international community to become involved in the internal affairs of others, giving
Germany the power, under their own sovereignty, to continue their genocidal policies without interference.
For Lemkin, genocide was an intent to “destroy or degrade an entire national, racial or religious group by
attacking the individual members of that group,” being a detrimental threat to either life, liberty, health, economic
existence, or any combination thereof. 25
The perpetrators of genocide could be either representatives of the state, or
another organized social or political group. He believed the liability for such crimes should be placed on both those
23
Lemkin, “Genocide – A Modern Crime”, 1
24
25

Rothenberg 7
who give the orders as well as those who carry them out. Because the consequences of genocide are international,
the attempt to repress such activities should also be international. The responsible parties must be liable not only
within the country where the crime was committed, but also in any country where they may be found. Because a
country that perpetrates genocide cannot be trusted to try its own offenders, they should be subject to a trial by an
international court. Lemkin proposed that a special council be added to the framework of the International Court of
Justice in order to try offenders for the crime of genocide.
Lemkin proved to be a relentless activist enlisting the support of many journalists and a number of non-
governmental organizations (NGOs) such as the National Conference of Christians and Jews and B‟rith, a Jewish
membership organization willing to support his cause and pressure UN delegates to promote it. While continuing to
lobby at the UN for a treaty to criminalize and prevent genocide, he continued to write numerous pamphlets,
petitions, newspaper articles, and letters to advance his proposition. After gaining the endorsement from Panama,
India, and Cuba, Lemkin began to approach individual delegations, explaining what could be gained by agreeing on
a treaty to prevent genocide. With the support of the United States, the resolution was then placed on the agenda of
the Assembly.26
The draft of the resolution consisted of two parts, the preamble and the resolution itself. The preamble
referred to the destruction of racial, religious, or national groups which had in the past stressed the losses to
humanity by the destruction of national groups and cultural contributions. The main body required the Economic
and Social Council to prepare a report containing information about declaring genocide as an international crime,
how to ensure international cooperation in prevention and punishment, and recommend a way that genocide could
be dealt with by national legislation, as had been established for crimes of piracy, slavery, and human trafficking.27
The final text of the resolution reads:
The General Assembly affirms that genocide is a crime under international law which the civilized world
condemns – and for the commission of such principles and accomplices, whether private individuals, public
officials or statesmen, and whether the crime is committed on religious, racial, political or any other
grounds – are punishable…28
26
Lemkin, “Genocide as a Crime under International Law”, 149
27
28

Rothenberg 8
On December 11, 1946, the General Assembly unanimously agreed to the convention Lemkin had worked so
diligently to advance.29
In preparation for the final draft of the Genocide Convention, the UN‟s Human Rights Division consulted
three experts. Among them were Raphael Lemkin, Henri Donnedieu de Vabres, a former judge at the Nuremberg
Tribunal and a law professor at the University of Paris, and Vespasian V. Pella, the President of the International
Association for Penal Law. These experts worked alongside John P. Humphrey, the Director of the Division of
Human Rights who had authored the first draft of what became the Universal Declaration of Human Rights. The
Secretary General believed that genocide should be defined so as not to encroach on other notions, which should be
distinct, in a reference to the notion of crimes against humanity that had already been defined in the Nuremberg
Tribunal‟s Charter.
Article II of the final draft of the Genocide Convention caused a great deal of debate about which groups
should be protected. Many UN members felt that political groups should be added to the convention, especial as the
Soviet Union, under Stalin‟s‟ reign, was rounding up political dissidents. However, the Soviet Union was not the
only country to object to the addition. Some argued that protection of political groups should be dealt with by the
Human Rights Commission, calling it a human rights issue. Others argued that political groups could not easily be
defined and would be difficult to differentiate from other groups such as scientist, artists, or workers. Many
countries facing civil unrest as the time threatened to object. They felt as though they would be unable to oppose
dissident political groups without the risk of being accused of genocide.30
In 1946, Lemkin expressed his thoughts about the debates surrounding Article II of the Genocide
Convention in an article titled “Genocide” published by the American Scholar. He defined genocide as “destroying
national, racial, or religious groups.” A much less inclusive definition then he had originally proposed in his book,
Axis Powers. Again, he dealt with the question of treating genocide as an international crime as opposed to a
national one as well as where and how criminal proceedings should occur. He discussed the many previous instances
of states expressing concern about another state‟s treatment of its own citizens. The United States had rebuked
Russia and Romania for the programs they had instigated or tolerated, and the diplomatic actions were taken on
behalf of the Greeks and Armenians when they were being massacred by the Ottoman Empire.31
Lemkin mentions
29
30
31
Raphael Lemkin. "Genocide." (American Scholar 15.2, 1946), 1

Rothenberg 9
many treaties relating to the protection of minorities and signed by members of the League of Nations. The UN
Charter provided for the international protection of human rights. Lemkin then proposed a formulation of the crime
to be included in the Genocide Convention: “Whoever, while participating in a conspiracy to destroy a national,
racial, or religious group, undertakes the attack against life; liberty of property of members of such groups is guilty
of the crime of genocide.”32
After nearly two years of work by various UN Committees, the General Assembly met in Paris on
December 9, 1948 to vote for the approval of the Convention on the Prevention and Punishment of the Crime of
Genocide. However, it was not until October 14, 1950 when the twentieth country ratified the convention beginning
its acceptance as a part of international law. As time passed many of the nations whose support was needed to
enforce the Convention showed little or no interest in ratifying it. The most notable omission being the United States
which was caught up in its own struggle against communism in 1950s and its internal conflict with civil rights in the
1960s.33
It looked as though ratification of the Genocide Convention by the United States had become a moot point.
Then, on January 11, 1967, William Proxmire, a Wisconsin Senator, declared that he would speak during
every Congressional session to remind the Senate of their failure to ratify the Genocide Convention and the
importance of why they should. Even though his daily talks seemed to get him nowhere, he continued to be
persistent. After speaking more than three thousand two hundred eleven times over nineteen years, the Senate finally
adopted the Proxmire Act, a resolution that would ratify the Genocide Convention. However, the resolution
contained abundant reservations. The Proxmire Act specified that the destruction „in whole or in part‟ of a group,
must actually represent destruction „in whole or in a substantial part.‟34
With substantial defined as “a part of a
group of such numerical significance that the destruction of the group as a viable entity within the nation of which
such a group is part.”35
In 1988, Congress confirmed the resolution, and the United States became a member of the Convention.36
Since ratification, the United States has avoided classifying conflicts in other nations as genocide in fear that they
may be obliged to act. Instead, they have referred to acts of Genocide, such as the Rwandan Genocide, as crimes of
ethnic cleansing until after the atrocity reaches a definitive conclusion. Without the support and participation of the
32
Raphael Lemkin. "Genocide.", 1
33
34
William Schabas. Genocide in international law, 5
35
John G Heidenrich. How to Prevent Genocide a Guide for Policymakers, Scholars, and the Concerned Citizen.
(New York: Praeger, 2001), 4
36

Rothenberg 10
US, other countries have also failed to act in implementing the Genocide Convention during an atrocity. Most of the
action has come through international criminal tribunals tasked with trying those responsible for implementing and
executing acts of genocide.
Raphael Lemkin died of heart failure while making arrangements for the publication of his autobiography
on August 28, 1959. His funeral was attended by a small crowd including an ambassador from Korea, the diplomat
Michael Elizur, an Israeli Press attaché, and a few others. Lemkin was buried in Queens, NY in the Mount Hermon
Cemetery. The inscription on the headstone reads „Dr. Raphael Lemkin (1900-1959) the Father of the Genocide
Convention.‟ At the insistence of his landlord, all of his papers and documents were to be removed from his one
room apartment and were later purchased and divided among three libraries.37
Raphael Lemkin‟s conception of genocide began with a much more inclusive definition, but without his
persistence the Genocide may never have become part of international law. The world will never know what might
have happened if the laws were in place before the Second World War. Until the final draft of the UN resolution on
the crime of genocide, political groups were also covered. However, due to international circumstances at the time
the Convention on the Prevention and Punishment of the Crime of Genocide was put up for adoption, the
Convention was as inclusive as it could be. Although the Genocide Convention is representative of the goals of the
United Nations, without the proper enforcement of its clauses this crime against humanity is likely to continue. If
nothing else, the Genocide Convention has allowed for the prosecution of those who violate the convention by
international tribunals, but only when it is too late. Without the constant persistence and activism of Raphael
Lemkin, the world might never have come to accept protection from genocide as a fundamental human right.
37
Cooper, Raphael Lemkin and the Struggle for the Genocide Convention, 271

Rothenberg 11
Works Cited
Andreopoulos, George J. Genocide (Pennsylvania Studies in Human Rights). New York: University of
Pennsylvania, 1997. Print.
Cooper, John. Raphael Lemkin and the Struggle for the Genocide Convention. New York: Palgrave Macmillan,
2008.
Eshet, Dan. Totally Unofficial: Raphael Lemkin and the Genocide Convention. Facing History and Ourselves, 2007.
Print.
Heidenrich, John G. How to Prevent Genocide A Guide for Policymakers, Scholars, and the Concerned Citizen.
New York: Praeger, 2001.
Lemkin, Raphael. "Acts Constituting a General (Transnational) Danger Considered as Offences Against the Law of
Nations." Trans. Jim Fussell. (1933). Preventgenocide.org. Web. 26 June 2009.
<http://www.preventgenocide.org/lemkin/madrid1933-english.htm>.
Lemkin, Raphael. Axis Rule in Occupied Europe: Laws of Occupation - Analysis of Government - Proposals for
Redress. Washington, D.C.: Carnegie Endowment for International Peace, 1944. Print.
Lemkin, Raphael. "Genocide - A Modern Crime." Free World 4 (1945): 39-43. Preventgenocide.org. Web. 26 June
2009. <http://www.preventgenocide.org/lemkin/freeworld1945.htm>.
Lemkin, Raphael. "Genocide." American Scholar 15.2 (1946): 227-30. Preventgenocide.org. Web. 26 June 2009.
<http://www.preventgenocide.org/lemkin/americanscholar1946.htm>.
Lemkin, Raphael. "Genocide as a Crime under International Law." The American Journal of International Law 41.1
(1947): 145-51. JSTOR. Web. 26 June 2009. <http://www.jstor.org/stable/2193871>.
Naimark, Norman M. Fires of Hatred Ethnic Cleansing in Twentieth-Century Europe. New York: Harvard
University Press, 2002.
Schabas, William. Genocide in international law the crimes of crimes. Cambridge, U.K: Cambridge UP, 2000. Print.

Lemkin and the Foundation of the Genocide Convention

Recommended

Recommended

More Related Content

Viewers also liked

Viewers also liked (19)

Similar to Lemkin and the Foundation of the Genocide Convention

Similar to Lemkin and the Foundation of the Genocide Convention (18)

Lemkin and the Foundation of the Genocide Convention