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 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
? 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).
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. 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 and delegate declared
that the failure of this proposal made it impossible to punish some of the serious Nazi crimes.
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
. The word genocide is a hybrid consisting of the Greek genos meaning race, nation or tribe; and the Latin suffix 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 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 infections, working to 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.
The evidence produced at the Nuremberg trial gave full support to the concept of genocide
. However, the International Military Tribunal gave 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 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 of Cuba, India, and Panama as sponsors
. 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 genocide an international crime; second, to insure international cooperation in its prevention and punishment; and third, to recommend 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
. 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 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
. 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.
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. 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 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. 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
Raphael Lemkin, ‘Genocide as a Crime under International Law’, American Journal of International Law (1947), Vol. 41 (1), pp. 145–151 (http://www.preventgenocide.org/lemkin/ASIL1947.htm#2).