The Man Who Criminalized Genocide

This is how you mend a broken world. A war-crimes tribunal presses a genocide charge, some decades later, against the leader of the Bosnian Serbs. The president of Sudan, wanted on charges of genocide in Darfur, where violence broke out in 2003, stirs embarrassment and angst with his plan to attend the United Nations General Assembly. Bangladesh sentences a former lawmaker to death for the mass murder of Hindus during the country’s 1971 war of independence from Pakistan. Romanian prosecutors charge the commander of a Communist-era prison with genocide—an echo of charges against the former dictator Nicolae Ceausescu, who was executed in 1989.

That’s a roster of recent events. Along with word from Iran’s foreign minister that his country does not deny the historical reality of the Holocaust, which he labels, aptly, genocide. A low-bar prerequisite, surely, for a long-stymied diplomatic conversation.

You’re an agitator against genocide. In fact, you invented the word “genocide.” So what would you think if you were to survey today’s global nastiness, deeds that reveal the worst of human nature and exact the worst of human costs? Would you still think giving a name to something makes it possible to squeeze it out of the system?

Genocide, it seems, never goes out of fashion, or at least never lies beyond the realm of the humanly possible. This summer, it found a different kind of relevance—the past creeping up on the present through a singular figure—with the publication of Totally Unofficial: The Autobiography of Raphael Lemkin (Yale University Press). Lemkin’s autobiography, unfinished and unpublished at the time of his death, was edited by Donna-Lee Frieze, a senior fellow at the Center for Jewish History in New York and a visiting fellow at Deakin University in Australia.

As the Nazi stain spread over Europe, Lemkin, a refugee in America, invented the term “genocide” and worked to propel the idea to international legal status. In his time, he was nominated for the Nobel Peace Prize. But his name is not widely recognized today. Nor is it widely recognized that an American institution gave him safe harbor at a critical point. That institution was Duke.

History hasn’t completely ignored Lemkin. This past spring, his work was a major theme in the annual Distinguished Lecture in Ethics—on “The Ethics of Globalization and the Globalization of Ethics”—sponsored by Duke’s Kenan Institute for Ethics. The speaker was Michael Ignatieff, former leader of the Liberal Party of Canada and a professor at both the University of Toronto and Harvard University’s Kennedy School of Government. In the lecture at Duke, and in his writing over the years, Ignatieff portrays Lemkin as a figure with an extraordinary moral imagination—and as an original thinker who could see, early on, the contours of a perverse form of jurisprudence.

“When the rope is already around the neck of the victim and strangulation is imminent, isn’t the word ‘patience’ an insult to reason and nature?”

“His central insight was that the occupation, not just in Poland but all across Europe, had inverted the equality provisions of all the European legal traditions,” Ignatieff says. “Food in Poland was distributed on racial grounds, with Jews getting the least. Marriage in occupied Holland was organized entirely on racial lines: Germans responsible for getting Dutch women pregnant were not punished, as would be the case under normal military law; they were rewarded, because the resulting child would be a net addition to the Nordic race.” Lemkin was the first scholar to work out the logic of the system. “From its unremitting racial bias, he was able to understand, earlier than most, that the wholesale extermination of groups was not an accidental or incidental cruelty, nor an act of revenge. It was the very essence of the occupation.” 

The essence of Lemkin’s legacy is the starting point for the Pulitzer Prize-winning A Problem From Hell: America and the Age of Genocide, published just over a decade ago. The author is Samantha Power, once a correspondent in Sarajevo, a capital city under siege during the Bosnian War, and now U.S. ambassador to the United Nations. Lemkin failed to win support for any measure to protect the Jews against Hitler’s designs. But, Power points out, he later secured the passage of the first-ever United Nations human-rights treaty, the treaty that outlawed genocide.

Human-rights abuses were an early and obsessive interest for Lemkin, who grew up in a Jewish household. He writes in his autobiography that as a twelve-year-old, he was struck by an account of ancient Rome and particularly of Emperor Nero’s massacres of Christian converts. He built a reading list around similar grim accounts through history. History, though, hit close to home. When he was just five, Jews were murdered in pogroms in his home region of Bialystok in Poland.

As a twenty-one-year old linguistics student at the University of Lvov, Lemkin learned of the case of a young Armenian. The Armenian had been charged with assassinating a former Turkish interior minister, an official who had set out to rid Turkey of its Armenian “problem,” igniting a campaign that reportedly brought the deaths of a million people. Lemkin asked his professor why the larger crime had gone unpunished. The professor said there was no law under which the chief perpetrator could be arrested.

The case became an international sensation. According to The New York Times, the documents introduced in the trial “established once and for all that the purpose of the Turkish authorities was not deportation but annihilation." Lemkin was uncomfortable, though, with the fact that the assassin had acted as the “self-appointed legal officer for the conscience of mankind,” as Power puts it in her study. “Passion, he knew, would often make a travesty of justice.” Retribution had to be legalized.

A decade later, in 1933, Lemkin, by then a public prosecutor in Warsaw, wrote a paper for an international criminal-law conference to be held in Madrid, drawing attention both to Hitler’s ascent and to the slaughter of the Armenians. If it happened once, he argued, it would happen again. If it happened there, it could happen here. “Lemkin offered up a radical proposal,” Power writes: Preventing genocide must be a global imperative, one enshrined in international law. His draft law would outlaw “barbarity,” meaning ”the premeditated destruction of national, racial, religious, and social collectivities,” along with “vandalism,” referring to the “destruction of works of art and culture, being the expression of the particular genius of these collectivities.” But the Polish Foreign Ministry, interested in an accommodation with Germany, would not allow Lemkin to travel to Madrid. His proposal was tabled at the conference.

In September of 1939, Germany invaded Poland. Lemkin began a 14,000-mile journey to freedom—and eventually to Duke. He boarded a train from Warsaw; just as it got under way, the train was bombed by the German Luftwaffe. He hid for days in the nearby forest and lived for a time in Poland’s Soviet-occupied territory, where he sought refuge in the house of a baker. As he relates in his autobiography, Lemkin resisted his host’s sentiment that in the end all would work out for the Jews, whose lot it had forever been to suffer and wait. Lemkin responded that this was a different war. “It is not a war to grab territory as much as to destroy whole peoples and replace them with Germans.” Lemkin reunited briefly with his family in eastern Poland; they refused to join him in flight. He next journeyed to Lithuania, and then to Stockholm in neutral Sweden. While lecturing on international law at the University of Stockholm, he visited a Swedish corporation for which he had done legal work in Warsaw. He requested a favor: to ask their branch offices to send government pronouncements from the occupied countries. “I started to read them, and I also found official gazettes of the German Reich in library collections in Stockholm,” he writes in his autobiography. It became clear to him that Germany was pursuing “denationalization followed by dehumanization.”

That would mean “the death of the nation,” in a spiritual and cultural sense alike. “As for the Jews, ominous signs pointed to their complete destruction in gradual steps.... In the peaceful library of Stockholm I saw an entire race being imprisoned and condemned to death.”

Lemkin became desperate to get to the U.S. And here’s where a Duke scholar enters—or more precisely, re-enters—the picture: Malcolm McDermott, a member of the Duke law faculty, who, in 1941, arranged for Lemkin’s status as a “special lecturer.”

In 1932, Lemkin had worked with McDermott to translate the Polish criminal code into English. The work accented such unusual features in the code as imprisonment up to five years for publicly inciting warfare; it was published by Duke University Press. A few years later, from 1936 to 1937, McDermott was a visiting lecturer at the universities of Krakow and Warsaw. On his return to campus, he expressed admiration for the “law-abiding” tendencies of the Poles. “Mr. McDermott,” reported Duke’s Law School Bulletin in March 1937, “finds the Poles like Americans in many ways. One quite unAmerican trait, however, is that they almost never talk about the weather, which is mostly bad. They dress as if they expected the worst, and usually get it.”

With Duke as his destination, Lemkin left Stockholm and caught a flight to another chronic bad-weather spot, Moscow, followed by a ride on the Trans-Siberian railroad to Vladivostok. From there he picked up a small boat, the “floating coffin,” and endured three days of stormy seas en route to the Japanese port of Tsuruga. He was in the country long enough to learn and muse about the mass murder of Catholics in Japan, an episode that began in the seventeenth century and lasted some two centuries. Another, more passenger-friendly boat brought him from Yokohama to Vancouver and on to Seattle, the U.S. port of entry, where he landed in April of 1941. A few days later, he arrived by train in Durham.

McDermott was waiting at the station; this was their first meeting in five years. Lemkin’s first impression of Durham was of “a lively, bustling city smelling of tobacco and human perspiration. There were gasoline stations on the corners, cars crowding bumper to bumper, people moving along. ... People greeted each other in a casual, friendly manner: ‘Hiya, John!’ ‘Hey, Jack!’ ”

Once McDermott drove him to Duke’s campus, Lemkin found nothing of “the European university atmosphere of worry.” He was led to “a huge quadrangle of high buildings, clean-cut and dressed in stony dignity,” and noted the well-manicured lawns and the imposing trees that surrounded them. “Young men and women moved about the campus with a remarkable ease. The boys wore white shirts open at the collar; the girls wore no stockings—they had on light summer dresses and carried many books and even more smiles, which they distributed generously.”

On Lemkin’s very first day, McDermott delivered an early surprise: “There is an alumni dinner this evening with the university president [Robert Lee Flowers], and I promised that you would speak.” And he would speak, of course, in English, a language that he had never used for “everyday living.” McDermott promised to sit right behind him and whisper prompts as needed. But Lemkin found his message without coaching from the sidelines:

“If women, children, and old people would be murdered a hundred miles from here, wouldn’t you run to help? Then why do you stop this decision of your heart when the distance is 5,000 miles instead of a hundred?”

Since he had arrived near semester’s end, Lemkin didn’t have immediate teaching duties. Still he would talk with students, often from a seat on the porch of the law school (then located along the academic quad). “The American student’s most interesting quality is his curiosity,” he writes in the autobiography. “This is probably due to the fact that the high schools in America are of lower quality than those in Europe: I believe this makes the American student feel that there is always something new to discover that he should have learned in high school, when he could have been organizing his mind and knowledge.”

At Duke, Lemkin found himself organizing his mind and knowledge with plunges into the speaking circuit. (His mentor, McDermott, took to the road with equal exuberance, on such subjects as “the history of liberty.”) As he recalls in his autobiography, “I visited many towns in the state and told the same story to Chamber of Commerce meetings, to women’s groups, to gatherings of young people.” He bought a white suit along with white shoes and white socks, all of which he would wear with a dark silk tie, “in order to attend the dinners I was invited to.” In the midst of all those public forays, Lemkin received a letter from his parents on a scrap of paper. “We are well,” the letter read.

Just days later, in June of 1941, he heard a radio broadcast announcing that Germany had declared war on the Soviet Union; separate German and Soviet zones in Poland had dissipated with the abrogating of the German-Soviet non-aggression pact. Forty-nine members of his family would perish in the Holocaust.

The Holocaust was never far from Lemkin’s teaching, lecturing, and writing at Duke. He began putting together the pieces that would form his major work, Axis Rule in Occupied Europe, published in 1944. In the book’s credits, McDermott is among those acknowledged, along with “the Library of Duke University for establishing a special documentation center on laws of occupation at the suggestion of the author.”

In generally detached language and through a narrow legal prism, the book analyzes Axis authority and policies in occupied Europe. Lemkin writes in the preface that the book grew out of a desire to reveal, “based upon objective information and evidence,” the contours of totalitarian rule. “Every phase of life, even the most intimate, is covered by a network of laws and regulations which create the instrumentalities of a most complete administrative control and coercion. Therefore these laws of occupation are an extremely valuable source of information regarding such government and its practices. For the outside world they provide undeniable and objective evidence regarding the treatment of the subjugated peoples of Europe by the Axis Powers.” 

“He was able to understand, earlier than most, that the wholesale extermination of groups was not an accidental or incidental cruelty.”

Its first section considers aspects of the German occupation through multiple lenses, from “Police” to “Property.” Another section looks at the occupation in individual countries—France, Norway, the Netherlands, Poland, and on and on through a continent adrift. In a chapter on “The Legal Status of the Jews,” Lemkin declares, “The treatment of the Jews in the occupied countries is one of the most flagrant violations of international law, not only of specific articles of the Hague Regulations, but also of the principles of the law of nations as they have emerged from established usage among civilized nations, from the laws of humanity, and from the dictates of the public conscience—principles which the occupant is equally bound to respect.”

“Genocide,” coined by Lemkin, appears for the first time in print in his book. “New conceptions require new terms,” the one-time student of linguistics writes. “By ‘genocide’ we mean the destruction of a nation or of an ethnic group.” This particular new term, he goes on, is made from the Greek word genos (race, tribe) and the Latin cide (killing), thus corresponding to tyrannicide and homicide. Genocide, he elaborates, signifies “a coordinated plan of different actions aiming at the destruction of essential foundations of selves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”

Axis Rule had immediate resonance. The New York Times Book Review devoted a cover story to the book, comparing its picture of Axis rule to a “monster” that “gorges itself on blood.” A Washington Post editorial titled “Genocide” later singled out the word in question as adequately capturing a brutal revelation: the gassing, over a period of two years, of some 1,765,000 Jews at Auschwitz-Birkenau. According to the editorial, the profound point about those killings “is that they were systematic and purposeful.”

In June of 1942, Lemkin left Duke to work as chief consultant for the federal Board of Economic Warfare and the Foreign Economic Administration. Two years later, he started with the War Department as an expert in international law. Power writes that Lemkin pleaded with President Franklin D. Roosevelt to have the U.S. adopt a treaty against barbarity and to make protection of Europe’s minorities a central war aim. Roosevelt urged patience. Lemkin’s response, as recorded in his autobiography: “[W]hen the rope is already around the neck of the victim and strangulation is imminent, isn’t the word ‘patience’ an insult to reason and nature?” He saw a “double murder,” one by the Nazis against the Jews and the other by the Allies, who refused to publicize or denounce Hitler’s extermination campaign.

Lemkin, in the book’s preface, underscores the importance of bringing to justice “the considerable numbers of Germans responsible for the great carnage.” In the spring of 1946, he went to Europe to search out surviving members of his family—and to observe the international military tribunal at Nuremberg as a kind of lobbyist, as Power describes him. His goal was to highlight mass slaughter as a crime in any context; the prosecutors, though, largely focused on aggression that grew from violations of another state’s sovereignty. He did manage to score what Power calls an occasional victory—including an indictment stating that some defendants “conducted deliberate and systematic genocide,” the first official mention of genocide in an international legal setting.

Lemkin arrived at U.N. headquarters in the fall of 1946, just as the new international organization was considering a resolution on genocide. That December, the General Assembly unanimously passed a resolution that condemned genocide as “the denial of the right of existence of entire human groups.” It was deemed shocking to “the conscience of mankind,” and contrary to “moral law and to the spirit and aims of the United Nations.” The resolution charged a U.N. committee with drafting a full-fledged treaty that would mark genocide as a violation of international law. It was a triumphant moment for Lemkin when, in December of 1948, the genocide convention finally passed. Around the crime of genocide, offending states would no longer have the legal right to be left alone; in fact, other states would have the legal responsibility to put to trial those suspected of committing genocide. Lemkin had felt that a mere declaration of human rights would be meaningless without an enforcement mechanism.

Early U.S. leadership on the genocide treaty, though, evaporated—a consequence, argues Power, of traditional hostility toward any infringement on U.S. sovereignty. That hostility was only amplified by the Red Scare of the 1950s. Lemkin himself became a target, if not directly of anti-Communist zeal, then at least of politically convenient slander: A member of the Senate Foreign Relations Committee complained that the “biggest propagandist” for the treaty was “a man who comes from a foreign country who...speaks broken English.”

After a number of countries signed the convention in 1957, The New York Times lauded Lemkin as “that exceedingly patient and totally unofficial man.” But the U.S. wouldn’t ratify the treaty until the 1980s. And it was only in 1998 that the International Criminal Tribunal for Rwanda convicted Jean-Paul Akayesu of genocide; it was the first such prosecution by an international court since the adoption of the 1948 convention. American policymakers had deliberately avoided the term “genocide” out of a concern that a genocide finding would have obliged the U.S. to act—a sad irony of the Lemkin legacy. Three years later, the International Criminal Tribunal for the former Yugoslavia found Radislav Krstic guilty of genocide for his role in the massacre of some 8,000 Bosnian Muslims in the town of Srebrenica. That was seen as the worst atrocity on European soil since World War II.

Totally Unofficial, the incomplete autobiography, ends with fragmentary notes for a concluding chapter. Lemkin refers to “an uphill fight, especially since I have to borrow money for postage to write to influential and interested people.” At that point he was jobless and penniless; he complains about critics who, “aware of my extreme poverty, use it to humiliate and undercut me.”

Still campaigning for his cause, still aspiring to see genocide elevated as an international crime, he was living in a one-room apartment on West 112th Street in Manhattan. On a visit to a Park Avenue public-relations agency, he died of a heart attack in August of 1959, at age fifty-nine.

Would Lemkin have been disappointed that genocide persists, irrespective of international opprobrium? Today the editor of his autobiography, Donna-Lee Frieze, says he had long acknowledged that the struggle to eradicate, prevent, or punish genocide would be long, and that an international convention was just a framework for the task. “Looking at the surface of Lemkin’s ideas, one could argue that he would have been disappointed and shocked. But I don’t think that’s the case,” she says. “He wasn’t so naïve as to expect a convention would immediately eradicate genocide. He was so deeply a student of genocide history that he understood that this was a ‘disease’ of humankind that continually occurs.”