When did the Second World War end? In the absence of a formal peace treaty in 1945, we celebrate on the dates of military surrender—V-E Day (May 8), or V-J Day (August 15). But in a sense, it would be better to see December 9-10, 1948, as when the war came to an end. It was then that the United Nations, sitting in plenary session in Paris, voted for two major advances in international law, which together said to the world: "Never again." The last joint operation of the war against the Axis powers was to establish a human-rights regime to affirm everything the Nazis tried to destroy.
The first law was the Genocide Convention; the second was the Universal Declaration of Human Rights. Their passage in a 24-hour period was an astonishing achievement. Consider the moment. The Berlin blockade had been under way for six months. The bloodbath attending the end of British rule in India was continuing. The Arab-Israeli war of 1948 had ended, for the time being. Mao's army was approaching Beijing. Eight months later, the Soviet Union would explode its first atomic bomb. The cold war was well and truly on.
And yet, for one moment, the two great powers did not let the present conflicts obscure what they and their allies had accomplished in the very recent past. And at what a cost. It is probably an underestimate to say that 20 million Soviet citizens died. The cold war has occluded that shocking statistic. By voting for the Genocide Convention, and by abstaining on the Universal Declaration of Human Rights, the Soviet Union was acknowledging that horror. A nation would no longer have the right to treat "its Jews," as Goebbels had told the League of Nations in 1933, any way it liked. Absolute state sovereignty would be a thing of the past.
Two Jewish lawyers were the pilots of those measures. The first was Raphael Lemkin, Polish-born but living in the United States. The second was René Cassin, then head of France's highest administrative court, the Conseil d'État. The two men could not have been more different. Lemkin was a loner, a man who, like others flirting with sainthood or martyrdom, made solitude into a virtue and a sign of election. Cassin was a man of endless sociability, serving a host of human-rights organizations. Cassin was an insider, Lemkin an outsider who managed to become an insider for a time. He was Isaiah Berlin's quintessential hedgehog, a man who knows one thing and only one thing, and knows it with his whole being.
Lemkin's life's work was to make the destruction of an entire people illegal. First, in 1943, not long after his parents were gassed in Treblinka, he invented a word to describe the crime—"genocide"—and then he insinuated himself into official circles in Washington and elsewhere to see the convention through the legal and diplomatic shoals.
How did he do it? The publication this month of his unfinished autobiography, Totally Unofficial (Yale University Press), skillfully woven together by Donna-Lee Frieze from drafts deposited in the New York Public Library, helps us to answer that question. But it raises other questions: Has the law against genocide been effective? And why has Lemkin, a remarkable man, largely disappeared from history?
After those two eventful days at the U.N. in Paris in 1948, when both Cassin and Lemkin held center stage, their fates and fortunes diverged. Cassin won every honor in sight, including the Nobel Peace Prize in 1968. Lemkin was a prophet without honors, descending into illness and poverty and dying alone, in 1959, of a heart attack at a bus stop on 42nd Street in New York City. Seven people showed up at his funeral.
Born in 1900, raised in a traditional Jewish family on a farm in the east of Poland, Lemkin trained as a lawyer in Warsaw and Berlin. While studying in the German capital, he was deeply moved by the 1921 trial of Soghomon Tehlirian for assassinating Taalat Bey, one of the architects of what we now know as the Armenian genocide. Tehlirian had lost his family in the killings; a Berlin jury acquitted him of the assassination, on the grounds that he was of unsound mind. In 1926, a Paris jury rendered the same verdict in the trial of a Jewish assassin, Shalom Schwarzbard, who shot and killed Simon Petlura, the Ukrainian leader he held responsible for pogroms that killed perhaps 50,000 Jews after the First World War. Lemkin was struck that both trials were for the murder of one man, and yet the murder of an entire people—not for what they had done but for who they were—was not considered a crime.
Raphael Lemkin worked as a one-man crusade. Human-rights groups need structures and money and younger colleagues. Lemkin was an astonishing exception.
At a League of Nations meeting in Madrid in 1933, Lemkin presented a paper on the need to recognize two new crimes—barbarism (killing civilians of a particular ethnic group because of their membership in that group)—and vandalism (the destruction of the cultural heritage of such groups). Anti-Semitism in Poland ended Lemkin's interwar career as a delegate to such discussions but did not stop his work.
When the Soviets invaded the east of Poland, on September 17, 1939, Lemkin fled. He tried and failed to persuade his family to join him. He never saw them again; 49 members of his family were killed in the Holocaust. Lemkin came to the United States the long way around. He escaped first to Lithuania, then got a visa to Sweden, and after receiving an invitation to teach at Duke University, traveled east to Riga and Moscow, and then via the trans-Siberian railway to Vladivostok, to Yokohama, and then across the Pacific to Vancouver, by train to Chicago, and finally to Durham, N.C.
First at Duke and then at Yale, the American academy provided Lemkin with the home he needed to formulate his ideas. His linguistic skills were formidable, and his knowledge of the logic behind the Nazi war machine was encyclopedic. After the United States entered the war, Lemkin entered public service in Washington, first at the Board of Economic Warfare and later as a legal adviser at the War Department. He also wrote an important book on the way the Nazis had transformed war into mass murder. Axis Rule in Occupied Europe, published by the Carnegie Endowment for International Peace in 1944, presented the term "genocide" formally for the first time, defining it as "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."
Lemkin was one of the first to define Nazi mass murder as a form of politics. Knowledge of the slaughter of the Jews of Europe had emerged from numerous sources in late 1942, but the full dimensions and nature of the plan were neither known, nor when known, believed. Genocide was, for most men and women, beyond comprehension. Lemkin put it into a monstrous but real political framework.
Once Allied forces occupied Germany and Poland and liberated the concentration camps, Lemkin shifted his focus from analysis to retribution. He went to Nuremburg, where he persuaded the Allied prosecutors to add genocide to the bill of indictment against the Nazi high command. Surprisingly, the Nazi officials were not convicted on this count, but primarily of waging aggressive war, a new legal concept of dubious validity. (What war is not aggressive? And what war between industrialized nations has not magnified its aggressiveness and exponentially increased the number of victims, in and out of uniform?)
From Nuremberg, Lemkin moved to New York, Geneva, and Paris, where the United Nations was engaged in discussions to give legal force to its charter. The Genocide Convention was a major step in that direction. It not only trumpeted the Allies' sense of horror at Nazi crimes but also created instruments for the repression and prevention of genocide in the future. Consider Article 6: "Persons charged with genocide ... 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." In other words, genocide trials would take place where the crimes occurred or in a neutral setting, like The Hague, where international law could be brought to bear. This challenge to state sovereignty was as new as the term that Lemkin had invented to describe the crime itself.
Lemkin's autobiography is revealing about how he went about his work. He had friends in high places in Washington and elsewhere. He went to great lengths to add a voice here, an editorial there, gaining the support of a women's organization today, a foreign minister tomorrow. A man of great conviction, but not great charm, he was an uncomfortable presence, someone not easily deflected. Speaking to him a second, third, or 33rd time could be tiresome or worse. And Lemkin was everywhere—cocktail parties, dinners, press conferences, intimate gatherings, public meetings, anywhere men and women of influence could be found. He was a guide to hell, a voice from the killing fields; he played the role of public conscience, as (to a degree) Elie Wiesel has done in subsequent years. Lemkin was a one-man NGO, the man who never goes away.
Lemkin's autobiography, written in his last years, shows his intelligence, his wit, his nostalgia for the world of his dead family, and his complex sense of mission. He deserves more from history than he received in his life. Why has his achievement been obscured?
One reason is that Lemkin worked not in an institution but as a one-man crusade. Human-rights groups need embodiment; they need walls and floors and roofs and structures and money and younger colleagues to carry on the work. Lemkin was an astonishing exception to the rule. When he went to the U.N., in 1945, like Hamlet's father he carried a message from the dead, a message unmistakably human and personal. He lived for that message; indeed, he was the message. Hitler had wiped out the Jews from an area of Eastern Europe where they had lived for a thousand years. Had he had the chance, he would have killed every Jew on earth. That crime had to be given a name, had to be acknowledged and proscribed as the legal abomination that it was. And this is what Lemkin did.
Then there was the work of ensuring that 20 nations would ratify the Genocide Convention so that it would officially take effect. By 1951, the convention became international law, binding on those nations that signed it. But that mattered little, since major powers were reluctant to ratify it. The Soviet Union did so in 1954, but Britain only in 1970, and the United States not until 1988.
By the early 1950s, Lemkin faded from the public view, increasingly tired and frail, worn down by his exertions. (He quipped that he suffered from genociditis.) By the mid-1950s, he was a broken man, embittered by the evident and growing indifference of the world around him to the significance of his achievement. Even during the height of his work at the U.N., he was virtually penniless, enduring the indignities of an indigent academic, whose minor celebrity did not pay the rent. His autobiography is unsparing in its description of his plight:
My hotel bill in N.Y. goes unpaid for some weeks. The calculated insults of the elevator boy. Finally, my clothes are confiscated, and I am locked out of my room. I arrange to pay off my bill, giving a few dollars each week or month, and finally redeem my things, only to find that they have served as banquet for the hotel's moths. Thus, I find myself pleading a holy cause at the U.N. while wearing holey clothes. My friends at the U.N. "plot" to see that I eat at least one meal a day. I am ashamed and try to limit myself to a bowl of soup when I am their guest. I move into a furnished room in an apt. on the West Side. For a time, I manage to borrow out enough money to pay my rent promptly, but eventually my "lend lease" arrangements fail, and I fall behind. My landlord takes to coming into my room at midnight each night and pouring abuse at me for not paying my rent. I pretend to sleep, although soon even my snoring cannot drown out his shouts. He disconnects my heat and takes my blankets away. He fixes the lock so I cannot lock him out at night, so I shove the dresser against the door each night, leaving him to shout at me.
Human rights now seem like a luxury someone at some time in the past thought we could afford. Not today. Or tomorrow.
Another reason that Lemkin's life and work have faded from view is the inclement political weather of the 1950s and 1960s. The cold war froze all attempts to turn the Genocide Convention or the Universal Declaration of Human Rights into effective instruments of international law. The United States would not tolerate international scrutiny of segregation any more than the Soviet Union would tolerate an investigation of Stalin's last mad cruelties. Britain and France wanted to avoid an examination of their human-rights record in Kenya, Malaysia, Vietnam, and Algeria.
Only after decolonization did a new moment of human-rights activism burst on the scene. In 1975, the Helsinki Accords established the Western boundary of the Soviet Union. In return, the Soviet leader Leonid Brezhnev agreed to give human-rights groups, like Helsinki Watch, the freedom to scrutinize the Soviets on human rights. How much this contributed to the collapse of the Soviet Union is anybody's guess.
These human-rights activists were working on the foundation laid by the 1940s generation, but few registered that fact. Human rights had become a popular, indeed a populist, movement, not one dominated by lawyers like Lemkin and René Cassin working the corridors of power. And yet there were continuities. Lemkin died too early to notice what Cassin would come to realize: The cold war had destroyed any chance that the U.N. Commission on Human Rights could operate effectively. So Cassin turned his attention to the regionalization of human-rights law. He helped establish the European Court of Human Rights, signing its very first decisions. The court was created to protect those rights that domestic courts in Europe were unable or unwilling to defend. Similar courts operate in Latin America and Africa. When Cassin won the Nobel Peace Prize, in 1968, it was not only as a central author of the Universal Declaration of Human Rights, but also as president of the European Court.
Perhaps Lemkin should have shared that prize. (He was nominated in 1950, 1951, 1952, 1958, and 1959.) But with one exception—that of Dag Hammarskjöld—Nobels are not awarded posthumously. And besides, even Nobel laureates tend to fade from view. Cassin is no exception. He is hardly known today, either inside or outside of France.
The achievements of Lemkin and Cassin have had little effect on the way governments respond to genocide. As Samantha Power showed scathingly in her 2002 book, A Problem From Hell, the United States has consistently tiptoed around using what President Bill Clinton called "the G-word," wary of taking the responsibility of stopping it. Clinton should know: He was slow to deal with the catastrophe in Rwanda, and though he did ultimately support military action to stop the killings in Bosnia, it was not before the Serbs had committed genocidal crimes. The record is clear: The Genocide Convention hasn't stopped killers from massacring their victims. Genocide prevention remains a goal, not a reality.
I can think of several reasons that Lemkin's vision has not been realized.
The first is the stubborn survival, indeed, the flourishing of the nation-state. Postwar economic recovery, driven by the Marshall Plan, propped up and then modernized states utterly exhausted by the war effort or compromised by occupation and collaboration with the Nazis. In Asia and Africa, anticolonial movements broke the yoke of imperial power. In 1991 the last great empire collapsed. Postimperial states emerged, which, at least when it came to human rights, were not much better than their imperial predecessors. Too often, national liberation meant liberation for those who came to power to violate the human rights of those who did not.
As for globalization, there is not the slightest evidence that its onward march brings with it a concern for human rights. After all, the right to work for a decent wage is also a human right. (Tell that to Bangladeshi garment workers.) It is doubtful that, aside from making communication and therefore political organizing easier, as in the Arab Spring, globalization has done much to advance the cause of human rights.
The second reason that human rights have been increasingly compromised in recent years is that war has metamorphosed. Al Qaeda and its epigones, whose commitment to human rights is nil, have pushed even liberal regimes into illiberal excesses. What human rights do the inmates of Guantánamo Bay have? Anti-immigrant and Islamophobic movements have sprung up in many parts of the world, fueled in part by a fear of terrorism, however defined. States and courts and citizens have turned inward. Human rights now seem like a luxury someone at some time in the past thought we could afford. Not today. Or tomorrow.
The first two reasons for the eclipse of human rights are ones that Lemkin could not have anticipated. But there was also something in his message that lessened the force of his achievement, at least for now. Lemkin's law was primarily backward-looking, a monument to those murdered in the Second World War and to a wartime alliance that had unraveled by the time the Genocide Convention was passed.
Lemkin described his convention as a "marriage," whereas Cassin's Universal Declaration of Human Rights was only a "date," a flirtation without a contract attached to it. In a sense, Lemkin was right. The Genocide Convention is a contract, but a contract that has only very rarely been enforced. One obvious problem has been that the Holocaust was so monstrous in its scope that putting other abominations alongside it and saying, yes, this too is genocide, has been difficult. Was the mass killing of Indians in Honduras genocide? Opinions differ. Competitions in relative suffering are never elevating events.
We all live within the constraints of our times, and while we are alive, we know them only vaguely. Lemkin operated at a unique moment, when the Allies stood back and saw the extent of Nazi crimes. He wanted the Genocide Convention to be a monument to the dead and an instrument for the living. His achievements were real, and yet the Genocide Convention looked back to the murders that swept away the world in which he was born more effectively than it prepared the ground to stop genocide from happening again.
Reading Lemkin's autobiography helps us acknowledge both the significance and the limits of his work. Naming a crime is not the same as eliminating it. That he did not launch a new era immediately, one in which human dignity comes before state sovereignty, is hardly a criticism. The times and the odds were against him. What he offered was a possibility, one to be taken up today or tomorrow, and who can do more than that?