A Problem from Hell: America and the Age of Genocide

1 Genocide;

2 Conspiracy to commit genocide;

3 Direct and public incitement to commit genocide;

4 Attempt to commit genocide;

5 Complicity in genocide.

Article 4

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Article 5

The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.

Article 6

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Article 7

Genocide and the other acts enumerated in article III shall not be considered aspolitical crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

Article 8

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.

Article 9

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Articles 1–9 of the UN Convention on the Prevention and Punishment of the Crime of Genocide.

On October 16, 1950, thanks largely to this behind-the-scenes prodding, the twentieth country ratified the genocide convention.

(#litres_trial_promo) Thus, seventeen years after Lemkin had first proposed it, the attempted destruction of national, ethnic, and religious groups became an international crime. He told reporters, “This is a day of triumph for mankind and the most beautiful day of my life.”

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The tougher challenge was the more important one: securing ratification in the U.S. Senate and then enforcement by the United States. When the convention cleared the General Assembly in 1948, few doubted that the United States would be one of the first countries to ratify it. The UN passage had been an American effort in many respects. In 1946 Lemkin had teamed up with several State Department lawyers to prepare the first draft of the treaty. It had been U.S. delegate at the United Nations John Maktos who chaired the Ad Hoc Committee of the Economic and Social Council that assembled another version of the text in Geneva. The United States had been the first country to sign the pact at the General Assembly in 1948.

In June 1949 President Harry Truman heartily endorsed the genocide convention, calling on U.S. senators to ratify it because America had “long been a symbol of freedom and democratic progress to peoples less favored” and because it was time to outlaw the “world-shocking crime of genocide.” Dean Rusk, then deputy undersecretary of state, stressed that ratification was needed to “demonstrate to the rest of the world that the United States is determined to maintain its moral leadership in international affairs.” Securing the two-thirds Senate vote seemed a mere formality.

But American spokesmen for the convention had to look outside the realm of human rights to find examples of treaties that earned U.S. support. Rusk testified, “It should be noted that the Genocide Convention does not represent the first instance in which the United States has cooperated with other nations to suppress criminal or quasicriminal conduct which has become a matter of international concern.” He went on, anticlimactically, to list those instances of international cooperation: “The United States is party to the multilateral Convention for Protection of Submarine Cables of 1884…The United States is party to a convention of 1911 with Great Britain, Russia, and Japan for the preservation and protection of fur seals in the North Pacific Ocean.” Treaties that obliged signatories to punish those who injured submarine cables or pelagic seals did not exactly constitute the same challenge to international policymakers as the ban on genocide. Thus, there was something absurd if admirable in Rusk’s attempt to build the case that genocide convention ratification constituted the natural culmination of previous campaigns. “The United States has cooperated in the past with other nations in the suppression of such lesser offenses as the killing of fur seals,” Rusk noted. “It is natural that other nations look to the United States for cooperation in the suppression of the most heinous offense of all, the destruction of human groups.”

(#litres_trial_promo) Rusk would later admit in his testimony that there was no evidence the seal convention had ever been violated.

The Critics

The early U.S. leadership on the genocide treaty largely evaporated in the months and years that followed. Some of the opposition to U.S. ratification was rooted in legitimate grievances about the text of the law. The convention’s plain wording was not terribly specific about the nature of the violence that needed to occur in order to trigger a global or national response. Lemkin had wanted to create a sacrosanct category of crime that the world would team up to prevent and punish. But the new convention did not clear up confusion about the meaning of “genocide.” Far from constituting a high-bar trigger, critics claimed the genocide pact offered a low-bar trampoline.

“Genocide,” as defined in the UN treaty, suffered then (as it suffers now) from several inherent definitional problems. One is what might be called a numbers problem. On the question of how many individuals have to be killed and/or expelled from their homes in order for mass murder or ethnic cleansing to amount to genocide, there is—and can be—no consensus. If the law were to require a pre-specified percentage of killings before outsiders responded, perpetrators would be granted a free reign up to a dastardly point. The law would be little use if it kicked in only when a group had been entirely or largely eliminated. By focusing on the perpetrators’ intentions and whether they were attempting to destroy a collective, the law’s drafters thought they might ensure that diagnosis of and action against genocide would not come too late. The broader, intentbased definition was essential if statesmen hoped to nip the crime in the bud.

But some U.S. senators feared the expansive language would be used to target Americans. The law’s most potent foe in the United States was the respected American Bar Association (ABA). Alfred T. Schweppe, chairman of the ABA’s Committee on Peace and Law Through the United Nations, challenged the convention’s definition of “genocide” before a U.S. Senate subcommittee hearing in 1950:

Certainly [the convention’s definition] doesn’t mean if I want to drive 5 Chinamen out of town, to use that invidious illustration, that I must have the intent to destroy all the 400, 000, 000 Chinese in the world or the 250, 000 within the United States. It is part of a racial group, and if it is a group of 5, a group of 10, a group of 15, and I proceed after them with guns in some community to get rid of them solely because they belong to some racial group…I think you have got a serious question. That is what bothers me.

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Senator Brien McMahon (D.–Conn.), the chairman of the first Senate subcommittee, who himself supported ratification, wanted answers, and this often resulted in a quest to pin down numbers. He asked, “Let us assume there is a group of 200, 000. Would that have to mean that you would have to murder 100, 001 before a major part would come under the definition?” Lemkin stressed that partial destruction obviously had to be “of such substantial nature that it affects the existence of the group as a group” and wrote graphically that partial destruction meant that “by cutting out the brains of a nation, the entire body becomes paralyzed.”

(#litres_trial_promo) In the end the McMahon subcommittee recommended including an “understanding” that the United States interpreted “in part” to mean “a substantial portion of the group concerned.” Even though this should have satisfied the senators’ need for reassurance, many ignored the proposed compromise language and continued to complain.

(#litres_trial_promo) Years later, when the Khmer Rouge, the Iraqi government, and the Bosnian Serbs began eradicating minority groups, those who opposed a U.S. response often ignored the genocide convention’s terms and denied genocide was under way, claiming the number of dead or the percentage of the group eliminated was too small.

The genocide convention also earned criticism for stipulating that a perpetrator could attempt to obliterate a group not only by killing its members but by causing serious bodily or mental harm, deliberately inflicting damaging conditions of life, preventing births, or forcibly removing children. But in order to constitute acts of genocide, these crimes could not be carried out in isolation. They had to be a piece of a plan to destroy all or part of the designated group. The aim of including acts besides murder was to ensure that the international community looked to—and reacted against—such “lesser” crimes as minimassacres, population transfers, and sterilization because they were evils in their own right and because they fell on a continuum that often preceded the physical elimination of a people. In criminal law an intent to commit a crime is generally hard to prove, and intent to commit genocide even harder. Only rarely would those planning a genocide record their intentions on tape or in documents. Proving an intent to exterminate an entire people would usually be impossible until the bulk of the group had already been wiped out. The convention drafters believed it would be better to act too soon rather than too late. When one group started expelling another group from its midst, as the Turks had done in 1915 and the Serbs would do in Bosnia in 1992, it could signal a larger plan of destruction.

The law’s opponents ignored the reasoning that lay behind the ban’s provisions. Instead they zeroed in on the possibility of stretching the new law’s language to apply to practices too mild to warrant interference in another state’s domestic affairs. Some suggested that U.S. ratification would license critics of the United States to investigate the eradication of Native American tribes in the nineteenth century.

(#litres_trial_promo) Southern senators feared that inventive lawyers might argue that segregation in the South inflicted “mental harm” and thus counted as genocide.

(#litres_trial_promo) Legislators warned that the convention would empower politicized rabblerousers to drag the United States or the senators themselves before an international court.

Reckoning with American brutality against native peoples was long overdue, but the convention, which was not retroactive, could not be used to press the matter. And although the United States’dismal record on race certainly exposed it to charges of racism and human rights abuse, only a wildly exaggerated reading of the genocide convention left the southern lawmakers vulnerable to genocide charges. Lemkin himself addressed the issue: “In the Negro problem the intent is to preserve the group on a different level of existence,” he said, “but not to destroy it.”

(#litres_trial_promo) Eunice Carter, a spokeswoman for the National Council on Negro Women, agreed, testifying that “the lynching of an individual or of several individuals has no relation to the extinction of masses of peoples because of race, religion, or political belief.” The council supported the convention because women and children were often the first victims of genocide and because minorities would be safe nowhere if genocide went “unchecked or unpunished.”

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Again, the 1950 Senate subcommittee had sought to soothe the senators’ fears by attaching an explicit, legal “understanding” that shielded the southern states by stating clearly, “Genocide does not apply to lynchings, race riots or any form of segregation.” The critics did not heed this (embarrassing) recommendation. Nor did they acknowledge that “trumped-up” charges could be filed regardless of whether the United States ratified the convention. The problem in the decades ahead would not be that too many states would file genocide charges against fellow states at the International Court of Justice (ICJ). Rather, too few would do so. And as of late 2001 no state had yet dared to challenge the United States by filing genocide charges against it in the ICJ. The southern opposition was driven mainly by xenophobia and an isolationism that led it to try to exempt the United States from all international frameworks.

Lemkin himself became a target of xenophobic slurs. In 1950 Senate Foreign Relations Committee member H. Alexander Smith (R.–N.J.) was aggrieved that the “biggest propagandist” for the convention was “a man who comes from a foreign country who…speaks broken English.” The senator claimed to know “many people…irritated no end by this fellow running around.” Senator Henry Cabot Lodge (R.-Mass.), who supported ratification, suggested that somebody tell Lemkin he had “done his own cause a great deal of harm.” Much of the criticism was rooted less in Lemkin’s tirelessness than in his Jewishness. Smith said that he himself was “sympathetic with the Jewish people,” but “they ought not to be the ones who are propagandizing [for the convention], and they are.”

(#litres_trial_promo) Despite having invented the concept of genocide, Lemkin was not invited by the Senate subcommittee to testify in the congressional hearings on ratification.

Lemkin reflected upon congressional opposition to his convention by noting, “If somebody does not like mustard, he will always find a reason why he doesn’t like it, after you have convinced him that the previous reason has no validity.” Critics complained that the treaty was both too broad (and thus could implicate the United States) and not broad enough (and thus might not implicate the Soviet Union). Although it protected “national, ethnical or religious groups” that were targeted “as such,” the law did not protect political groups. The Soviet delegation and its supporters, mainly Communist countries in Eastern Europe as well as some Latin American countries, had argued that including political groups in the convention would inhibit states that were attempting to suppress internal armed revolt.

(#litres_trial_promo) Behind the Soviet position was the fear that the convention would invite outside powers to punish Stalin for wiping out national minorities throughout Central Asia, as well as his alleged counterrevolutionary “enemies.” Stalin, it came as no surprise, was not interested in creating a right of international intervention (or what he considered a right of unwanted meddling) to stop such practices. Because Lemkin recognized that including political groups would split the Legal Committee and doom the law, he, too, had lobbied for their exclusion.

(#litres_trial_promo) Instead of curing the law of its defects or supplementing it with other measures, American critics contended that a state had arguably committed genocide if it caused mental harm to five persons because of the color of their skin but had not committed genocide if it killed 100, 000 people because of the color of their party membership card. The exclusion of political groups from the convention made it much harder in the late 1970s to demonstrate that the Khmer Rouge were committing genocide in Cambodia when they set out to wipe out whole classes of alleged “political enemies.”

The core American objections to the treaty, of course, had little to do with the text, which was no vaguer than any other law that had not yet been interpreted in a courtroom. Rather, American opposition was rooted in a traditional hostility toward any infringement on U.S. sovereignty, which was only amplified by the red scare of the 1950s. If the United States ratified the pact, senators worried they would thus authorize outsiders to poke around in the internal affairs of the United States or embroil the country in an “entangling alliance.” It was hard to see how it was in the U.S. interest to make a state’s treatment of its own citizens the legitimate object of international scrutiny. Genocide prevention was a low priority in the United States, and international law offered few rewards to the most powerful nation on earth.

In May 1950 McMahon’s Senate subcommittee reported favorably on the treaty, but the North Korean invasion of South Korea the following month caused the Foreign Relations Committee to postpone its vote. The war unleashed an anti-Communist panic. Republican senators Joseph McCarthy and John Bricker criticized the United Nations as a “world government” that had dragged the United States into war. They were champions of states’ rights, which they said the federal government was trampling by joining international treaties. The genocide convention represented a stronger UN at the expense of American sovereignty and a stronger federal government at the expense of the states. Senator A. Willis Robertson, a conservative Democrat from Virginia and a Bricker supporter, wrote that he already had “enough trouble with do-gooders in our own country” who demanded a federal government role in regulating human rights. The American people certainly did not need the United Nations applying “that same type of pressure.”

(#litres_trial_promo) In 1952, hoping to limit the federal government’s power and backed overwhelmingly by Senate Republicans, Bricker introduced an amendment to the U.S. Constitution that would have reduced the president’s authority to approve foreign treaties.