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Overview: Developing International Human Rights in the 20th Century

With regard to new laws, phrases such as “a law was drafted,” or “the law was passed” are common. The problem with this way of telling the story of how a law is created is that it glosses over the work of groups and individuals.

In some cases, we cannot fully understand how ideas become law without understanding the role of particular individuals. This is true even with international law. It is true especially with regard to the UN Convention on Genocide.

As Samantha Power points out in her book, A Problem From Hell, the passage of the UN Convention on Genocide (1948) was due, in large measure, to the work of a single individual, Raphael Lemkin.

Training

Raphael Lemkin was a Polish Jew studying linguistics at the University of Lvov when news that Mehmed Talaat was murdered in Berlin. Talaat, former interior minister of Turkey, was murdered by a young Armenian man whose family had been killed during Turkey's genocidal actions toward the Armenians during World War I.

Lemkin was intrigued by Talaat's murder. The massacre of the Armenians was widely known by this time, but nothing had been done by the international community. Efforts to hold the Turkish officials responsible for the atrocities had gone nowhere. Revenge by vigilante justice filled in the gap where international action had failed.

But Lemkin was troubled by this. Certainly, he was appalled by the treatment of the Armenians, but he was also troubled by the way in which justice had been served. Why hadn't the Turks arrested Talaat for the massacre? One of Lemkin's professors pointed out that states were absolutely sovereign and there was no law under which the Turkish government could be held accountable. Lemkin realized two things: first, revenge did not provide a sufficient basis for international order, and second, without some sort of international legal basis, there was no way of preventing such atrocities in the future.

Lemkin switched his area of study to law.

Building Networks and Fostering Ideas

If Lemkin's linguistic training and mastery of several languages provided an invaluable basis for communicating his ideas, his legal training provided the ability to frame those ideas in terms of law. Perhaps as important as his ability to forward his ideas, his legal training provided the skill to be able to draft model laws. Lemkin could translate ideas into concrete legal instruments.

Lemkin's ideas might well have gone nowhere had it not been for his brilliant mind, legal training and access to international networks of lawyers. It was not enough for Lemkin to be concerned. That concern had to be translated into language and introduced into forums that would catch the attention and imagination of people with influence and power.

However, acquiring the level of influence necessary to change the world's thinking on atrocities—like those committed against the Armenians—was no small matter. Lemkin submitted a paper at an international criminal law conference in Madrid in 1933. (The Polish government did not allow Lemkin to be present.) His paper made a radical proposal: in order to avoid the mass murder perpetrated against the Armenians from happening again, states had to band together to ban the practice. Individuals who were guilty of such actions should be arrested and tried regardless of their nationality.

Actions like those committed against the Armenians would be an international crime. But, for a crime to be international presupposed that there was some sort of international legal order that could define the actions as crime and act to enforce these international norms. This proposal was a first step toward qualifying the doctrine of the sovereignty of the state in favor of an international law to which all states should submit.

However, though some of Lemkin's elder colleagues were intrigued, he found few allies for his proposal.

Passion

Had Lemkin's interest in international justice been purely or even mostly academic, his failure at Madrid may have proved to be the end of his crusade. However, events after that time served to galvanize his resolve.

Even in 1933, Lemkin was able to see in Hitler's rise to power the danger of a repeat of the Turkish atrocities. He had intimated as much at the international conference in Madrid. Lemkin's goal was not to hold Turkey accountable so much as to learn from Turkey's actions to prevent further tragedies. With the Nazi regime rising to power, it would seem that the time for proactive law was upon Europe. Unfortunately, European powers still clung to the doctrine of the absolute sovereignty of states. Only the Holocaust would bring Lemkin's message home.

Fleeing to the US, Watching Horrors in Europe

Lemkin was forced to flee Europe and finally landed in the U.S. He was offered a position at Duke University law school and began work cataloging Nazi atrocities and lobbying for intervention. He used his position as Duke professor and his position as a consultant to various U.S. government agencies to make the horrors of the Holocaust known.

As reports of Nazi atrocities began to grow, Lemkin kept track and created a huge collection of stories and accounts. He attempted to use the accounts to motivate U.S. policymakers into action, even asking for a meeting with President Roosevelt. Unfortunately, as the Holocaust was not the focus of U.S. efforts, his appeals were lost.

Lemkin had a personal stake in the efforts to bring the Holocaust to the world stage. His parents were living in western Poland.

Strategies

Lemkin realized that simply collecting accounts and lobbying policymakers was not enough. He began work to educate and motivate members of the public. The challenge, however, was that there was no clear term to describe the Nazi atrocities. From his background in linguistics, Lemkin recognized the power of words. He needed to find a term that was clear, easily pronounceable and that would communicate the unique nature of Turkey's and the Nazi atrocities. It needed to be a term that would not be confused with other, more generic terms like “brutality.”

In order to convey the power and urgency of the situation, Lemkin coined the term “genocide” to indicate the cultural and physical extermination of a people or race. The term quickly took hold in the public mind. The goal was then to get the term into law.

Nuremberg

After Hitler's defeat and the liberation of Germany, the full weight of the Final Solution became clear to the world. Lemkin went to the Nuremberg trials where he discovered that his parents had been killed.

At Nuremberg, Lemkin worked tirelessly to get the term genocide inserted into Nuremberg rulings. According to Power's interviews, Lemkin's lobbying efforts were such that people began to try to avoid him. However, his efforts paid off and the notion of genocide was incorporated into some of the Nuremberg documents.

But, this was not enough. Lemkin realized that the Nuremberg trials were war crimes trials. They were premised on the notion that Germany's guilt occurred after it had invaded another country. Lemkin's point was that even if a country does not go to war or invade another country, it should still be held accountable for its treatment of its own citizens.

Lemkin saw, more clearly than others, that state sovereignty could not stand as a barrier for prosecuting genocidal actions. If the Holocaust was to never be repeated, there needed to be a truly international law to which all countries were held accountable. State sovereignty must be sacrificed to some degree if acts of genocide were never to happen again.

Bearing Fruit

Lemkin went to the newly formed United Nations in October 1946. If possible, his lobbying efforts to make genocide an international crime became even more intense. His lobbying efforts were not haphazard and he was careful to take political alliances into account when buttonholing policymakers to lobby for the genocide law. He appealed to smaller nations by saying that, “[L]arge countries can defend themselves by arms, small countries need the protection of the law."

On December 11, 1946 the General Assembly of the United Nations unanimously approved a resolution condemning genocide. However, Lemkin's battle was not over. The genocide resolution had to become law. Drafting battles continued (with Lemkin providing drafts of the new UN law) until December 9, 1948 when the General Assembly voted the resolution into law. The Convention on the Prevention and Punishment of the Crime of Genocide passed unanimously, and became the first United Nations human rights treaty.

Bottom Line

From a distance, international lawmaking may appear as the outcome of faceless committees, negotiations and diplomacy. While all these elements are part of international lawmaking, the story is not complete without an account of the champions of the law. Samantha Power's account of Raphael Lemkin's tireless work to criminalize genocide demonstrates the influence that talented, highly trained and passionately motivated individuals can have on international lawmaking.

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