A Problem from Hell: America and the Age of Genocide

Lemkin saw he needed a word that could not be used in other contexts (as “barbarity” and “vandalism” could). He self-consciously sought one that would bring with it “a color of freshness and novelty” while describing something “as shortly and as poignantly as possible.”

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But Lemkin’s coinage had to achieve something Eastman’s did not. Somehow it had to chill listeners and invite immediate condemnation. On an otherwise undecipherable page of one of his surviving notebooks, Lemkin scribbled and circled “THE WORD” and drew a line connecting the circle to the phrase, penned firmly, “MORAL JUDGEMENT.” His word would do it all. It would be the rare term that carried in it society’s revulsion and indignation. It would be what he called an “index of civilization.”

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The word that Lemkin settled upon was a hybrid that combined the Greek derivative geno, meaning “race” or “tribe,” together with the Latin derivative cide, from caedere, meaning “killing.” “Genocide” was short, it was novel, and it was not likely to be mispronounced. Because of the word’s lasting association with Hitler’s horrors, it would also send shudders down the spines of those who heard it.

Lemkin was unusual in the trust he placed in language. Many of his Jewish contemporaries despaired of it, deeming silence preferable to the necessarily inadequate verbal and written attempts to approximate the Holocaust. Austrian writer and philosopher Jean Améry was one of many Holocaust survivors estranged from words:

Was it “like a red-hot iron in my shoulders” and was this “like a blunt wooden stake driven into the base of my head?”—a simile would only stand for something else, and in the end we would be led around by the nose in a hopeless carousel of comparisons. Pain was what it was. There’s nothing further to say about it. Qualities of feeling are as incomparable as they are indescribable. They mark the limits of language’s ability to communicate.

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The suffering inflicted by Hitler fell outside the realm of expression.

But Lemkin was prepared to reinvest in language. New to the United States and wracked by anxiety about his family, he viewed the preparation of Axis Rule and the coinage of a new word as a constructive distraction. At the same time, he did not intend for “genocide” to capture or communicate Hitler’s Final Solution. The word derived from Lemkin’s original interpretations of barbarity and vandalism. In Axis Rule he wrote that “genocide” meant “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.”

(#litres_trial_promo)The perpetrators of genocide would attempt to destroy the political and social institutions, the culture, language, national feelings, religion, and economic existence of national groups. They would hope to eradicate the personal security, liberty, health, dignity, and lives of individual members of the targeted group. He continued:

Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and colonization of the area by the oppressor’s own nationals.

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A group did not have to be physically exterminated to suffer genocide. They could be stripped of all cultural traces of their identity. “It takes centuries and sometimes thousands of years to create a natural culture,” Lemkin wrote, “but Genocide can destroy a culture instantly, like fire can destroy a building in an hour.”

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From the start, the meaning of “genocide” was controversial. Many people were receptive to the idea of coining a word that would connote a practice so horrid and so irreparable that the very utterance of the word would galvanize all who heard it. They also recognized that it would be unwise and undesirable to make Hitler’s crimes the future standard for moving outsiders to act. Statesmen and citizens needed to learn from the past without letting it paralyze them. They had to respond to mass atrocity long before the carnage had reached the scale of the Holocaust. But the link between Hitler’s Final Solution and Lemkin’s hybrid term would cause endless confusion for policymakers and ordinary people who assumed that genocide occurred only where the perpetrator of atrocity could be shown, like Hitler, to possess an intent to exterminate every last member of an ethnic, national, or religious group.

Others were critical not so much of Lemkin’s definition as his apparent naivete. His innovation was interesting, they said, but a word is a word is a word. Merely affixing the genocide label would not necessarily cause statesmen to put aside their other interests, fears, or constraints. Even if lawyers in Madrid had adopted Lemkin’s proposal, they noted, neither the existence of the label nor the application of it would have affected Hitler’s decisionmaking, his ideology, or the outside world’s lethargic response to his crimes. Lemkin met these criticisms with defensive bombast. He told a North Carolina audience that the rejection of his Madrid proposal was “one of the thousand reasons why…your boys are fighting and dying in different parts of the world at this very moment.”

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Yet for all of the criticisms, the word took hold. Lemkin proudly bran-dished the letter from the Webster’s New International Dictionary that informed him that “genocide” had been admitted. Other lexicographers followed suit.

(#litres_trial_promo) In the book he began writing immediately after Axis Rule, Lemkin noted that the “individual creator” of a word would see his word absorbed only “if, and in so far as, it meets popular needs and tastes.” He insisted that the rapid acceptance of “genocide” by lexicographers and humanity served as “social testimony” to the world’s readiness to confront the crime.

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Certainly, current events seemed to ratify Lemkin’s assumption. The very week the Carnegie Endowment published his book, the Roosevelt administration’s War Refugee Board for the first time officially backed up European charges of mass executions by the Germans.

(#litres_trial_promo) “So revolting and diabolical are the German atrocities that the minds of civilized people find it difficult to believe that they have actually taken place,” the board stated. “But the governments of the United States and other countries have evidence which clearly substantiates the facts.” Many newspapers linked their coverage of the board report with Lemkin’s term. On December 3, 1944, for instance, after Lemkin persuaded Eugene Meyer, the publisher of the Washington Post, the paper’s editorial board hailed “genocide” as the only word befitting the revelation that between April 1942 and April 1944 some 1,765,000 Jews had been gassed and cremated at Auschwitz-Birkenau. “It is a mistake, perhaps, to call these killings ‘atrocities, ’” the editorial entitled “Genocide” read. “An atrocity is a wanton brutality…But the point about these killings is that they were systematic and purposeful. The gas chambers and furnaces were not improvisations; they were scientifically designed instruments for the extermination of an entire ethnic group.”

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Lemkin made little secret of his desire to see "genocide" gain international fame. As he proselytized on behalf of the new concept, he studied the lingual inventions of science and literary greats.

(#litres_trial_promo) But fame for the word was just the beginning. The world had embraced the term “genocide.” Lemkin assumed this meant the major powers were ready both to apply the word and oppose the deed.

Chapter 4 Lemkin’s Law (#ulink_1fc05345-9b65-5412-9cd5-8fe94655770a)

“Only man has law…You must build the law!”

—Raphael Lemkin

The Nuremberg Beginning

With the end of war in Europe on May 8, 1945, and the Allied liberation of the Nazi death camps, the scale of Hitler’s madness had been revealed. Practically all that had sounded far-fetched proved real. Some 6 million Jews and 5 million Poles, Roma, Communists, and other “undesirables” had been exterminated. American and European leaders saw that a state’s treatment of its own citizens could be indicative of how it would behave toward its neighbors. And though sovereignty was still thought to be sacrosanct, a few scholars had begun gently urging that it not be defined so as to permit slaughter.

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Raphael Lemkin had never needed much encouragement, but Allied rhetoric made him believe that the world might be ready to listen. If genocide were to be prevented or punished, “genocide” would need more than a place in Webster’s. Naming the crime was just a first step along the road to banning it. That road would prove a long one. Law had of course been one tool among many used and abused to facilitate the destruction of the Jews. Hans Frank, former German minister of justice, had summed up a core Nazi premise when he said, “Law is that which is useful and necessary for the German nation.”

(#litres_trial_promo) Nobody knew better than Lemkin the legal minutiae deployed by Germany to achieve its eliminationist ends. Yet for Lemkin this recent soiling of law only highlighted the need to restore its integrity through humane invention. A set of universal, higher norms, was needed as a backstop to national law. The “theory of master race had to be replaced,” he said, by a “theory of master morality.”

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It would be the new United Nations that would decide whether to criminalize genocide as states had already done with piracy; forgery; trade in women, slaves, and drugs; and as they would later do with terrorism. In a letter to the New York Times, Lemkin wrote:

It seems inconsistent with our concepts of civilization that selling a drug to an individual is a matter of worldly concern, while gassing millions of human beings might be a problem of internal concern. It seems also inconsistent with our philosophy of life that abduction of one woman for prostitution is an international crime while sterilization of millions of women remains an internal affair of the state in question.

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If piracy was an international crime, he could not understand why genocide was not. “Certainly human beings and their cultures are more important than a ship and its cargo,” he exclaimed at a postwar international law conference in Cambridge. “Surely Shakespeare is more precious than cotton.”

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Lemkin was initially quite well received in the United States. After years of getting jeered or yawned out of international law conferences, he suddenly found himself with a measure of cachet in the U.S. capital and with a standing invitation to contribute to the country’s major publications.

In Nuremberg, Germany, the three victors (and France) had set up an international military tribunal to try the leading Nazi perpetrators. The Nuremberg court was placing important dents in state armor. Indeed, it was amid considerable controversy that the Nuremberg charter prosecuted “crimes against humanity,” the concept the Allies had introduced during World War I to condemn the Turks for their atrocities against the Armenians. With Nuremberg going so far as to try European officials for crimes committed against their own citizens, future perpetrators of atrocities—even those acting under explicit state authority—could no longer be confident that their governments or their borders would shelter them from trial.

Since Nuremberg was making this inroad into state sovereignty, one might have expected Lemkin to cheer from the sidelines. In fact, he was a fierce critic of the court. Nuremberg was prosecuting “crimes against humanity,” but the Allies were not punishing slaughter whenever and wherever it occurred, as Lemkin would have wished. The court treated aggressive war ( “crimes against peace” ), or the violation of another state’s sovereignty, as the cardinal sin and prosecuted only those crimes against humanity and war crimes committed after Hitler crossed an internationally recognized border.

(#litres_trial_promo) Nazi defendants were thus tried for atrocities they committed during but not before World War II. By inference, if the Nazis had exterminated the entire German Jewish population but never invaded Poland, they would not have been liable at Nuremberg. States and individuals who did not cross an international frontier were still free under international law to commit genocide. Thus, although the court did a fine job building a case against Hitler and his associates, Lemkin felt it would do little to deter future Hitlers.

In May 1946 Lemkin turned up in the rubble of Nuremberg as a kind of semiofficial adviser (or lobbyist) so that he could proselytize in person. He knew the charter’s terms were fixed, but he hoped to get “genocide” incorporated into the prosecutors’ parlance and spotlighted on the Nuremberg stage. Even if genocide were not punished, at least the court could help popularize the new term. Lemkin had been teaching part time at Yale Law School. He convinced the dean, Wesley Sturges, to grant him leave on the grounds that it was better to develop international law than to teach it.

Lemkin had spent most of his time since the war’s end tracking down his missing family members. In Nuremberg he met up with his older brother, Elias; Elias’s wife; and their two sons. They told him that they were the family’s sole survivors. At least forty-nine others, including his parents, aunts, uncles, and cousins, had perished in the Warsaw ghetto, in concentration camps, or on Nazi death marches.

(#litres_trial_promo) In the words of one lawyer who remembers Lemkin roaming around the corridors at the Nuremberg Palace of Justice, he was “obviously a man in pain.”

If Lemkin was relentless before, the loss of his parents pressed him into overdrive. He spent his days buttonholing lawyers in the halls of the Palace of Justice. Some were sympathetic to his graphic war stories. Others were irritated. Benjamin Ferencz was a young lawyer on Nuremberg prosecutor Telford Taylor’s staff, which was building a case against the Einsatzgruppen, the mobile killing units that butchered Jews in Eastern Europe. He remembers Lemkin as a disheveled, disoriented refugee less concerned with hanging the Nazi war criminals than with getting genocide included in the tribunal’s list of punishable crimes. Most of the prosecutors tried to avoid him, seeing him as a nag or, in Yiddish, a nudnik. “We were all extremely busy. This new idea of his was not something we had time to think about,” Ferencz recalls. “We wanted him to just leave us alone so we could convict these guys of mass murder.”

Lemkin did score an occasional victory. Because of his prior lobbying efforts, the third count of the October 1945 Nuremberg indictment had stated that all twenty-four defendants “conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories.” This was the first official mention of genocide in an international legal setting. On June 26, 1946, British prosecutor David Maxwell Fyfe cheered Lemkin by telling Nazi suspect Constantin von Neurath, “Now, defendant, you know that in the indictment in this trial we are charging you and your fellow defendants, among other things, with genocide.”

(#litres_trial_promo) Lemkin wrote Fyfe that summer to thank him “for your great and so effective support which you lent to the concept of Genocide.” He also urged Fyfe to get “genocide” included in the Nuremberg judgment.