Origins of the genocide convention.

AuthorKing, Jr., Henry T.
PositionInternational Conference in Commemoration of the Sixtieth Anniversary of the Negotiation of the Genocide Convention

REMARKS OF HENRY T. KING, JR.

I first saw Raphael Lemkin--the man who coined the word "genocide" and identified it as an international crime--at the Grand Hotel in Nuremberg in 1946. At that time, he was unshaven, his clothing was in tatters, and he looked disheveled. Lemkin was very upset. He was concerned that the decision of the International Military Tribunal (IMT)--the Nuremberg Court--did not go far enough in dealing with genocidal actions. This was because the IMT limited its judgment to wartime genocide and did not include peacetime genocide. At that time, Lemkin was very focused on pushing his points. After he had buttonholed me several times, I had to tell him that I was powerless to do anything about the limitation in the Court's judgment.

I thought that Lemkin was a "crank" at the time, and gave him short shrift. But Lemkin, despite his appearance, was to have a vital role in pushing genocide as an international crime and in the development of the United Nations Convention on Genocide.

Raphael Lemkin was a Polish-Jewish lawyer whose family was decimated by the Nazis. His interest in what was to be known as "genocide" starts with concern over the unpunished Turkish massacre of hundreds of thousands of Armenians. The Turkish official who ordered the massacre was not brought to trial, but the young man who allegedly assassinated him was. Lemkin saw a great anomaly where an individual was on trial--possibly for life--for allegedly committing a single murder, while the instigator of the massacre of thousands of people went free; Lemkin wanted to correct this injustice. In the 1930s, Lemkin prepared a draft of a law punishing those who committed the destruction of people on the grounds of race, religion or national origin. He wanted the concept of universal jurisdiction to apply to the law's enforcement, so that violators could be tried wherever they were caught, regardless of where the crime was committed or of either the defendant's nationality or official status. (1) Lemkin worked for years to get this law adopted, and he was at Nuremberg to pursue this objective when I met him in 1946.

The term "genocide" means the destruction of a national, racial, or religious group. The definition comes from the Greek word "genos" (race, tribe) and the Latin "cide" (killing).

Abolishing genocide is about learning to value diversity. As Raphael Lemkin wrote in 1944:

Our whole cultural heritage is a product of the contributions of all nations. We can best understand 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, and a Dvorak; the Greeks a Plato and a Socrates; the Russians a Tolstoy and a Shostakovich. (2) Hitler's concept of a "master race"--namely the Germans--brought the Nazis into direct conflict with those who favored diversity. Hitler wanted to dignify genocide as a sacred purpose of the German people. National Socialism was, in his mind, the doctrine of the biological superiority of the German people.

A hierarchy of racial values determined the ultimate fate of the many peoples that fell under German domination. Jews and Gypsies were to be completely annihilated. The Poles, the Slovenes, the Czechs, the Russians, and all other "inferior" Slav peoples were to be kept on the lowest social level. Those thought to be related by blood--the Dutch, the Norwegian, the Alsatians--were given the choice to either espouse Germanism or share the fate of the "inferior" people.

Raphael Lemkin coined the term "genocide" in 1944, (3) and in 1945, President Harry S. Truman charged Robert Jackson--the architect of Nuremberg--to conduct the trial of the major Nazi war criminals. At the time of Justice Jackson's appointment, enough was known of the genocidal activities of the Nazis to recognize that this would be one of the points of focus at the trial.

Jackson was appointed on May 2, 1945, and he reported back to President Truman on June 6, with a plan for conducting the trials. Included in that report as crimes that the trials should deal with were "atrocities and persecutions on racial and religious grounds committed since 1933." (4) These genocidal activities were to be among the crimes the Nazis were charged with. Jackson's recognition of genocidal activity as a crime was the first of its kind in an international criminal proceeding. Jackson also recognized that genocidal activity could take place in peacetime as well as wartime when, in his report to President Truman, he specified that the trial should cover genocidal crimes occurring "since 1933." (5)

President Truman directed Jackson to negotiate with the allies (the United Kingdom, France, and the U.S.S.R.) to develop a procedure for the trial of the major Nazi war criminals. These negotiations took place in London in the early summer of 1945. The negotiations were difficult at times, particularly with the U.S.S.R., but were eventually successful. The result was the London Charter of August 8, 1945. (6)

The London Charter (Charter) specified genocidal activity as a crime, but the term was limited on its face to wartime genocide and did not include peacetime genocide, either explicitly or implicitly. (7)

Crimes against humanity are referenced as follows: Article 6(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. (8) This definition was both hurtful and helpful to the development of a definition of the crime of genocide. As a matter of first instance, the definition stated that "persecution on political, racial or religious grounds" was actionable only when committed in the execution of or in connection with any crime within the jurisdiction of the tribunal. (9) This meant that such activity was condemned only when related to crimes against peace or war crimes. Thus, in the opinion of the IMT, only wartime genocide was deemed actionable. Regardless, the definition was helpful because it held such persecution to be a crime "whether or not in violation of the domestic law of the country where perpetrated." (10) In other words, German law was irrelevant with regard to punishment for these crimes. And, more specifically, German law could not authorize such crimes. The test in adjudging these crimes was to be based on international law, and not local law. Read in the abstract, this was, indeed, an important limitation on sovereignty and one that would prove helpful in dealing with such crimes subsequently.

Genocide was recognized as a crime against top Nazis on October 6, 1945, by stating in the indictment:

[The Defendants] conducted deliberately and systematically genocide via the extermination of racial and national groups, against the civilian population of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups, particularly Jews, Poles and Gypsies and others. (11) The trial began on November 20, 1945, and for almost a year, the IMT and the world heard of the genocidal activities of the Nazis through evidence consisting primarily of documents of the Nazis' own making.

The evidence produced at Nuremberg gave full support to the charge of genocide. Raphael Lemkin was particularly impressed with the statements by Sir Hartley Shawcross and Sir David Maxwell-Fyfe for the British prosecution, and Auguste Champetier de Ribes and Charles Dubost for the French prosecution, who elaborated at length and with great eloquence on the crime of genocide throughout the proceedings. Lemkin also commented favorably on the work of Brigadier General Telford Taylor in the Subsequent Proceedings. Taylor used the concept of genocide to good effect, for example, in the case of the Nazi doctors who experimented on captive human beings. In this case, the defendants performed experiments ranging from castration and sterilization on the one hand, to outright killings and abortions on the other. Certainly the commission of these crimes against Jews, Poles, and others fit Nazi genocidal ambitions.

On December 11, 1946, the United Nations General Assembly broadly endorsed the Nuremberg principles as reflected in the IMT judgment, and by separate resolution affirmed the principle of genocide as a crime. The adoption of the resolution relating to genocide was followed by a push towards the drafting and adoption of a U.N. Convention on genocide. This was accomplished in October 1948, and with sufficient ratifications, the Convention went into effect in 1951. (12) Most of the countries in the world have now ratified the Genocide Convention. (13) Even the United States has ratified the Convention, though after forty years of scrutiny and with significant reservations. (14)

The first reservation of the United States relates to Article IX of the Convention. (15) Article IX of the Convention provides that disputes concerning the application of the Convention, including those relating to the responsibility of a state for genocide, "shall be submitted to the International Court of Justice." (16) The United States' reservation to the Convention states that with respect to any disputes involving the United States, such disputes may only be submitted to the International Court of Justice with the specific consent of the United States. (17) That consent is required in each case. The United States' second reservation has the effect that nothing in the Convention requires or authorizes legislation, or other action by the United...

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