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Introduction
The term "genocide"
The Nuremberg Tribunal
The UN General Assembly
The Resolution in the Legal Committee
The Right of Intervention,
a Future International Treaty,
and the Principle of Universal Jurisdiction
The Peace Treaties
and Germany's Criminal Code
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Introduction
The practices of the National Socialist Government in Germany resulting
in destruction of entire human groups gave impetus to a reconsideration
of certain principles of international law. The question arose whether
government can destroy with impunity its own [p. 146] citizens and whether
such acts of destruction are domestic affairs or matters of international
concern. Practically speaking, should the moral right of humanitarian
intervention be converted into a right under international law? 1
If the destruction of human groups is a of international
concern, then such acts should be treated as crimes under the law of nations,
like piracy, and every state should be able to take jurisdiction over
such acts irrespective of the nationality of the offender and of the place
where the crime was committed.
In line with this thought the present writer submitted a proposal to
the International Conference for Unification of Criminal Law held in Madrid
in 1933 to declare the destruction of racial, religious or social collectivities
a crime under the law of nations (delictum iuris gentium). 2
There was envisaged the creation of two new international crimes: the
crime of barbarity, consisting in the extermination of social collectivities,
and the crime of vandalism, consisting in destruction of cultural and
artistic works of these groups. The intention was to declare these crimes
punishable by any country in which the culprit might be caught, regardless
of the criminal's nationality or the place where the crime was committed.
3 This proposal
was not accepted. Much later, on November 22, 1946, during the discussion
on genocide in the United Nations General Assembly, Sir Hartley Shawcross,
United Kingdom Attorney General [p.147] and delegate declared that the
failure of this proposal made it impossible to punish some of the serious
Nazi crimes. 4
The term "Genocide"
It was only in 1945 that the German war criminals were indicted, among
other things on the on the charge of genocide, meaning the extermination
of racial, or religious groups, especially the Jews, Poles, Gypsies, and
others. The term and concept of genocide had been developed by this writer
in his work Axis Rule in Occupied Europe. 5
The word genocide is a hybrid consisting of the Greek
genes meaning race, nation or tribe; and the Latin cide
meaning killing. The realities of European life in the years 1933-45 called
for the creation of such a term and for the formulation of a legal concept
of destruction of human groups. The Nazis had embarked upon a gigantic
plan to change permanently change the population balance in occupied Europe
in their favor. They intended to wipe out entirely the biological power
of the neighbors of Germany so that Germany might win a permanent victory,
whether directly through military subjugation or indirectly through such
a biological destruction that even in the case of Germany's defeat the
neighbors would be so weakened that Germany would be able to recover her
strength in later years.
The crime of genocide involves a wide range of actions, including not
only deprivation of life but also the prevention of life (abortions, sterilizations)
and also devices considerably endangering life and health (artificial
death in special camps, deliberate separation of families for depopulation
purposes and so forth). All these actions are subordinated to the criminal
intent to destroy or to cripple permanently a human group. The acts are
directed against groups, as such, and individuals are selected for destruction
only because they belong to these groups. In view of such a phenomenon
the terms previously used to describe an attack upon nationhood were not
adequate. Mass murder or extermination wouldn't apply in the case of sterilization
because the victims not murdered, rather a people was killed through delayed
action by stopping propagation. Moreover mass murder does not convey the
specific losses to civilization in the form of the cultural contributions
which can be made only by groups of people united through national, racial
or cultural characteristics.
Nuremberg
The evidence produced at the Nuremberg trial gave full support to the
concept of genocide. 6 However,
the International Military Tribunal gave [p. 148] a narrow interpretation
to its Charter and decided that acts committed before the outbreak of
the war were not punishable offenses. This decision of the Tribunal was
to a great extent based on the rectification on an alleged error in the
Charter. On October 6, 1945, the four prosecutors signed in Berlin a protocol
amending the Charter to the effect that the semi-colon in Art. 6, paragraph
(c), of the Charter between the words "war" and "or" has been erroneously
substituted for a comma. The signatories wished to remove a discrepancy
between the Russian text (which had a comma) on the one hand and the French
and English texts on the other hands, which had a semicolon between the
above words. 7 Ultimately the Charter
was interpreted so that inhuman acts and persecutions of the civilian
population were punishable only when committed during or in connection
with the war. From the point of view of international law, however, acts
committed before the war by Germany on its citizens were more significant.
Had the Tribunal punished such acts a precedent would have been established
to the effect that a Government is precluded from destroying groups of
its own citizens.
The UN General Assembly
Such was the legal status of the problem when the General Assembly met
at Lake Success in October of 1946. The present writer was conscious of
the great necessity of establishing a rule of international law which
would make sure that "revolting and horrible acts" committed by a government
on its own citizens, to use the words, of the Nuremberg Tribunal, should
in the future not go unpunished. It was then necessary to return to the
postulates submitted to the International Conference for Unification of
Criminal Law held in Madrid in 1933. The writer discussed the situation
with several delegates at Lake Success. Encouraged by their sympathetic
understanding, he drafted a resolution a resolution which was signed by
the representatives [p. 149] of Cuba, India, and Panama as sponsors. 8
With the strong support of the United States delegation, the resolution
was placed on the agenda of the General Assembly. Later the matter was
referred to the Legal Committee for discussion. The draft of the resolution
consisted of two parts: The preamble referred to the destruction of racial,
religious or national, groups in the past and stressed the losses to humanity
in the form of cultural and other contributions. It further stated that
genocide is a denial of the right of entire human groups in the same sense
that homicide is a denial to an individual of his right to live, and that
such a denial is contrary to the aims and purposes of the UN. In its part
the resolution of the assembly called upon the Social and Economic Council
to prepare a report on three matters; first, to declare that genocide
be dealt with by national legislation in the same way as other international
crimes such as piracy, traffic in women and children, and others.
The Genocide Resolution in the
Legal Committee
The resolution met with the sympathy of the Legal Committee, as well
as with considerable support from public opinion. 10
Sir Hartley Shawcross proposed that the Legal Committee should declare
genocide an international crime without awaiting further study by the
Social and Economic Council. The council was finishing its work and did
not intend to reconvene during 1946. Because of additional amendments
the Legal Committee appointed a sub-committee (Señor Gajardo from
Chile served as chairman and Mr. Charles Fahy, Legal Advisor to the United
States Department of State served as Reporter of the Sub-Committee) which
submitted to the Legal [p. 150] committee the final draft. The draft carried
two additional points as compared to the original, a reference to moral
law and a specification of the responsibility of public officials. 11
This was approved by the Legal Committee and finally, on December 11,
1946 unanimously adopted by the Assembly. The text of the resolution in
its essential parts reads as follows:
The General Assembly,
Affirms that genocide is a crime under international
law which the civilized world condemns -- and for the commission of
which principals and accomplices, whether private individuals, public
officials or statesmen, and whether the crime is committed on religious,
racial, political or any other grounds -- are punishable;
Invites the Member States to enact necessary legislation
from the prevention and punishment of this crime;
Recommends that international cooperation be organized
between States with a view to facilitating the speedy prevention and
punishment of the crime of genocide, and, to this end,
Requests the Economic and Social Council to undertake
the necessary studies, with a view to drawing up a draft convention
on the crime of genocide to be submitted to the next regular session
of the General Assembly.
The Right of Intervention, a Future International
Treaty,
and the Principle of Universal Jurisdiction
By declaring genocide a crime under international law and by making it
a problem of international concern, the right of intervention on behalf
of minorities slated for destruction has been established.. This principle
is already accepted by the UN and does not need any specific confirmation
by treaty. Thus the resolution of December, 11, 1946 changes fundamentally
the international responsibilities of a government toward its citizens.
The importance of the concept of genocide from the point of view of international
law and the new responsibilities of states was stressed in the letter
of President Truman transmitting his report on the United Nations to the
Congress of the United States on February 5, 1947. 12
Genocide is now established as a crime under international law on a plane
with piracy although no treaties were signed to this effect. The usefulness
of a future international treaty on genocide lies in facilitating the
prevention and punishment of the crime and apprehension of criminals.
13 According
to the second paragraph of the resolution, member states are to enact
suitable legislation. No great difficulties are involved in this field
since genocide is a composite crime and consists of acts which are themselves
punishable by most existing legislation. The main task will be to redraft
provisions into criminal law formulae based upon the specific criminal
intent to [p. 151] destroy entire human groups. Such redrafted Provisions
will have to be adjusted to the principle that the offenders are punishable
in a given country even if the crime is committed abroad. This last principle
is the symbol and practical application of the higher doctrine of moral
and legal solidarity in protecting the basic values of our civilization.
The Peace Treaties
and Germany's Criminal Code
The concept of genocide can and must be used also in treaties between
for the settlement of conflicts and disputes with underlying ethnical,
racial and religious tensions, especially in cases where such tensions
result in large scale criminality. Peace treaties afford an appropriate
occasion for such use of this concept. Since some of the Axis satellite
countries committed genocide in the recent war according to the German
pattern the writer proposed in a special memorandum that the Paris Conference
with the satellite countries should include in the Peace Treaties anti-genocide
clauses. This would amount to an obligation by the enemy countries involved
to include immediately the crime of genocide in their criminal codes to
punish the numerous perpetrators of this crime.
14 Unfortunately the proposal of the author
could not be discussed because it was introduced after the deadline of
16 August 1946, the time fixed for new amendments to the drafts of the
treaties with the satellite countries.
However, in the case of the peace settlement relating to Germany the
inclusion of anti-genocide clauses in the peace treaty or peace statute
would both timely and appropriate. Germany, the classical country of genocide
practices, must not profit by the situation that the United Nations genocide
resolution does not bind her as a state because she is not a member the
United Nations. Since Germany's Practices actually provided the basis
for developing the concept of genocide she should be the first country
to include the crime of genocide in her criminal code. Such an obligation
should be imposed upon Germany either through the forthcoming peace instrument
or even earlier, by order of the occupation authorities and (or) or by
a specific obligation to be included in the German state constitutions.
Anti-genocide provisions in German domestic law are especially necessary
because of the great number of persons of alien origin who are still residing
in Germany as displaced persons.
Raphael Lemkin*
Adviser on Foreign Affairs, War Department
___________________
[Footnotes, see page numbers]:
1 Although some humanitarian intervention stigmatized
religious persecutions by the use of not-quite-legal terms, it has always
been felt that such interventions are based essentially on considerations
of international morality,. Compare to this respect the communication
from Secretary of State Hay to Mr. Wilson, United States Minister to Romania,
on July 17, 1902, in connection with the persecution of Romanian Jews:
"This government cannot be a tacit party to such an international wrong"
(Moore, Digest, Vol. VI, p. 364), but also instructions from
Mr. Lansing to Ambassador Morgenthau to use his good offices for the "amelioration
of conditions of the Armenians, informing Turkish Government that this
persecution is destroying the feeling of good will which the people of
the United States have always hold toward Turkey" (Foreign Relations,
19l5, Supplement, p. 988).
2 Raphael Lemkin, Le terrorism, in
Actes de la Ve Conférence pour l'Unification du Droit pénal
à Madrid (14-2O.X.1933), and in particular by the same author the
supplement to the above report entitled Les
actes constituant un danger general (interétatique) consideres
comme delites des droit des gens: Paris, Pedone,1933.
3 The formulation ran as follows:
Art. 1) Whoever, out of hatred towards a a racial, religious
or social collectivity or with view of its extermination, undertakes
a punishable action against the life, the bodily integrity, liberty,
dignity or economic existence of a person belonging to such a c collectivity
community, is liable, for the offense of Barbarism, to imprisonment
for a period of . . . unless punishment for the action is not envisaged
in a more severe provision of the respective Code.
Art. 2) Whoever, either out of hatred towards a racial, religious or
social collectivity or with the goal of its extermination, destroys
its cultural or artistic works, will be liable, for the crime of vandalism,
to a penalty of . . . unless his deed falls within a more severe provision
of the given code.
The above crimes will be prosecuted and punished irrespective
of the place where the act was committed and of the and the nationality
of the offender, according to the law of the country where the offender
was apprehended.
[p. 147]
4. Journal of the United Nations,
No. 41, 1946, page 52.
5. Axis
Rule in Occupied Europe, Washington: Carnegie Endowment
for International Peace; 1944.
6. See especially statements by Sir
Hartley Shawcross and Sir David Maxwell Fyfe for the British prosecution;
and Champetier de Ribes and Dubost for the French prosecution, who elaborated
at length and with great eloquence on the crime of genocide in the course
of the Nuremburg proceedings. The concept of genocide was also used recently
by the Chief of Counsel in subsequent Nuremberg proceedings, Brigadier
General Telford Taylor, in the case
against the Nazi doctors [offsite link]
who [p. 148] experimented in order on human camps. In this classical genocide
ease the defendants practiced experiments in order to develop techniques
for outright killings and abortions, on one hand, and sterilizations and
castrations on the other hand. The present writer calls the first "ktonotechnics"
(from the Greek ktonos meaning murder)and the second "sterotechnics"
(from the Greek steiros meaning infertility). Both "ktonotechnics"
and "sterotechnics" were considered by the Nazi as very essential
and served the purposes of genocide in its physical and biological aspects.As
to various aspects and techniques of genocide see the writer's volume
cited in Chapter, IX, Genocide. If and when "sterotecnics" achieves scientific
character and is free of its genocidal purposes it could then qualify
as sterology (the science of sterilization).
7. The provision of the Charter as
signed by the Representatives of the United States, France, Great Britain
and the Soviet Union on August 8, 1945, reads as 6 (c) Crimes against
humanity: namely, murder, extermination, enslavement, deportation,
and other inhuman acts committed against any civilian population, before
or during the war; or persecution on political, racial or religious grounds
in execution of or in connection with any crime within the jurisdiction
of the Tribunal, whet violation of domestic law of the country where perpetuated."
See United Department of State, Executive Agreement series, No. 17,
p. 46.
[p. 149]
8. The discussion in the Legal Committee
were highlighted by the very learned comments of he following: H.E. Guillermo
Belt, Ambassador of Cuba, to the Hon. Mrs. Vijaya Lakshmi Pandit, Chairman
of the Delegation of India, and to H.E. Dr. Ricardo J. Alfaro, Minister
of Foreign Affairs of the Republic of Panama, for sponsoring the resolution.
9. The discussion in the Legal Committee
were highlighted by the very learned comments of the following: H.E. Dr.
Robert Jimenez, former Minister of Foreign Affairs of Panama, Chairman
of the Legal Committee of the United Nations General Assembly; Mt. Charles
Fahy, U.S.A; Professor Ernesto Dihigo, Representative of Cuba, Justice
Chagla, Representative of India; Dr. Jesus Maria Yepes, Legal Advisor
of the Ministry of Foreign Affairs of Colombia; The Honorable Abdul Monim
Bey Riad, Representative of Saudi Arabia; Professor Charles Chaumont,
Advisor of the French Delegation; Mr. P.N. Saptu, Alternate Representative
of India, Dr. Manfred Lachs, Advisor to the Delegation of Poland; Dr.
Kerno, Assistant to the Secretary General of the U.N.
10. An important factor the comparatively
quick reception of the concept of genocide in international law was the
understanding and support of this idea by the press of the United States
and other countries. Especially remarkable contributions were made by
the Washington Post (since 1944), The New
York Times, (since 1945), New York Herald Tribune, Dagens
Nyheter in Stockholm; Sunday Times of London, The Nineteenth
Century and After, London, Le Monde of Paris, Tribune des
Nations in Paris, and other organs of public opinion in Switzerland,
Holland, Norway and India. Also numerous organizations working in the
field of international affairs were interested and supported this concept
such as The Scandinavian Institute for International Cooperation, and
the International Women's Alliance, both of Stockholm.
[p. 150]
11. On responsibility of persons
acting on behalf of states in the crime article by present writer in The
American Scholar, Vol. XV, No. 2 (April 1946).
12. Text of letter in The New
York Times, February 6, 1947.
13. The outline of such a treaty
was offered by the writer in his writer published in The
American Scholar, as cited - it was republished in La
Revue Belge de Droit Penal et de Criminologie, Brussels,
November, 1946, also in Samtiden, Oslo, October, 1946, and in a special
pamphlet issued by the Secretariat D'Etat à la Présidence
du Conseil et à L'Information in Paris, on September
24, 1946 (Notes Documentaires et Etudes No 417) under the title
Le
Crime de Génocide.
[p. 151]
14. See Memorandum sur la necessité
d'inclure les clauses contre le génocide dans les traités
de paix published in the the Annex of the French pamphlet Le
Crime de Génocide, cited above, note 13,
wherein two alternative formulae of the crime of genocide proposed for
peace treaties are introduced as follows:
(1) "Whoever, while participating in a conspiracy to
destroy a national, racial, or religious group, undertakes an attack
against the life, liberty, or property of members of such groups is
guilty of the crime of genocide";
(2) "Whoever, while participating in a conspiracy to destroy a national,
racial, or religious group undertakes an attack against the life or
bodily integrity or practices biological devices on members of such
groups, is guilty of the crime of genocide."
* The views expressed in this note
are the personal views of the author and not necessarily those of any
government department with which he has been or is connected.
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