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| I: “A crime without a name.”II: The word “genocide”
IV: Creating a legal framework VI: Proposal for an International Treaty, including the following principles: 4. Both those who gave and received the orders are liable, as well as those who incited the crime 5. Offending States accont- abler to the United Nations Security Council 6. Revising the Hague Convention 7. Genocide protection in the peace treaties with Axis satillite countries.
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In this way a mass obliteration of nationhoods had been planned throughout occupied Europe. The Nazi leaders had stated very bluntly their intent to wipe out the Poles, the Russians; to destroy demographically and culturally the French element in Alsace-Lorraine, the Slavonians in Carniola and Carinthia. They almost achieved their goal in exterminating the Jews and Gypsies in Europe. Obviously, the German experience is the most striking and the most deliberate and thorough, but history has provided us with other examples of the destruction of entire nations, and ethnic and religious groups. There are, for example, the destruction of Carthage; that of religious groups in the wars of Islam and the Crusades; the massacres of the Albigenses and the Waldenses; and more recently, the massacre of the Armenians. While society sought protection against individual crimes, or rather crimes directed against individuals, there has been no serious endeavor hitherto to prevent and punish the murder and destruction of millions. Apparently, there was not even an adequate name for such a phenomenon. Referring to the Nazi butchery in the present war, Winston Churchill said in his broadcast of August, 1941, “We are in the presence of a crime without a name.” Hitler stated many times that Germanization [p. 228] could only be carried out with the soil, never with men. These considerations led the author of this article to the necessity of coining a new term for this particular concept: genocide. This word is made from the ancient Greek word genos (race, clan) and the Latin suffix cide (killing). Thus, genocide in its formation would correspond to such words as tyrannicide, homicide, patricide. By its very legal, moral and humanitarian nature, it must be considered an international crime. The conscience of mankind has been shocked by this type of mass barbarity. There have been many instances of states expressing their concern about another state’s treatment of its citizens. The United States rebuked the government of Czarist Russia as well as that of Rumania for the ghastly pogroms they instigated or tolerated. There was also diplomatic action in behalf of the Greeks and Armenians when they were being massacred by the Turks. States have even entered into international treaties by which they assumed specific obligations in the treatment of their own nationals. We may, in this respect, refer to the treaty entered into between the United States and Spain in 1898, in which the free exercise of religion was assured by the United States to the inhabitants of the territories which were ceded to her. Another classical example of international concern in the treatment of citizens of other states by their governments is provided by the minority treaties under the auspices of the League of Nations which were signed by a number of European countries after the first World War. Again, the declaration of the Eighth International Conference of American States provides that any persecution on account of racial or religious motives which makes it impossible for a group of human beings to live decently is contrary to the political and judicial systems of America. The Charter of the United Nations Organization also provides for the international protection of human rights, indicating that the denial of such rights by any state is a matter of concern to all mankind. Cultural considerations speak for international protection of national, religious and cultural groups. Our whole heritage is a product of the contributions of all nations. We can best understand this when we realize how impoverished our culture would be if the peoples doomed by Germany, such as the Jews, had not been permitted to create the Bible, or to give birth to an Einstein, a Spinoza; if the Poles had not had the opportunity to give to the world a Copernicus, a Chopin, a Curie; the Czechs, a Huss, a Dvorak; the Greeks, a Plato and a Socrates; the Russians, a Tolstoy and a Shostakovich. There are also practical considerations. Expulsions of law-abiding residents from Germany before this war created frictions with the neighboring countries to which these peoples were expelled. Mass persecutions forced mass flight. Thus, the normal migration between countries assumes pathological dimensions. Again, international trade depends upon confidence in the ability of the individuals participating in the interchange of goods to fulfill their obligations. The arbitrary and wholesale confiscations of the properties of whole groups of citizens of one state for racial or other reasons deprives them of their capacity to discharge their obligations to citizens of other states. Many American citizens were deprived of the possibility of claiming debts incurred by German importers after these importers were destroyed by the Hitler regime. Finally, genocide in time of peace creates international tensions and leads to war. It was used by the Nazi regime to strengthen the alleged unity and totalitarian control of the German people as a preparation for war. Thus, it has been recognized by the law of nations and by the criminal codes of many nations that crimes which affect the common good of mankind – as, for example, piracy, unlawful production and trade in narcotics, forgery of money, trade in women and children, trade in slaves – all these are international crimes (delicta juris gentium). For such crimes, the principle of universal repression has been adopted, namely the culprit can be punished not only before the courts of the country where the crime has been perpetrated, but also by courts of the country where the culprit can be apprehended if he escaped justice in his own country. For example, a currency forger who committed his crime in Paris and escaped to Prague can be punished validly in the latter city. In 1933, at the Fifth International Conference for the Unification of Criminal Law (under the auspices of the Fifth Committee of the League of Nations) the author of the present article introduced a proposal providing for this type of jurisdiction for acts of persecution amounting to what is now called genocide. Unfortunately, at that time, his proposal was not adopted. Had this principle been adopted at that time by international treaty, we would not now have all the discussions about ex post facto law, in relation to crimes committed by the German government against its own citizens prior to this war. [p. 229]
Genocide can be carried out through acts against individuals, when the ultimate intent is to annihilate the entire group composed of these individuals; every specific act of genocide as directed against individuals as members of a national or racial group is illegal under the Hague Convention. If the killing of one Jew or one Pole is a crime, the killing of all the Jews and all the Poles is not a lesser crime. Moreover, the criminal intent to kill or destroy all the members of such a group shows premeditation and deliberation and a state of systematic criminality which is only an aggravated circumstance for the punishment. Genocide has been included in the indictment of the major war criminals for the use of the Nuremberg trials. It reads as follows:
By including genocide in the indictment, the enormity of the Nazi crimes has been more accurately described. Moreover, as in the case of homicide, the natural right of existence for individuals is implied: by the formulation of genocide as a crime, the principle that every national, racial and religious group has a natural right of existence is claimed. Attacks upon such groups are in violation of that right to exist and to develop within an international community as free members of international society. Thus, genocide is not only a crime against the rules of war, but also a crime against humanity. Only after the cessation of hostilities could the whole gruesome picture of genocide committed in the occupied countries be reviewed. During the military occupation unconfirmed rumors about genocide leaked out from behind the iron curtains covering enslaved [p. 230] Europe. The International Red Cross was precluded from visiting occupied countries and gathering information about the mistreatment of the civilian populations. It so happened because the Geneva Convention gave to the International Red Cross the right to supervise and control only the treatment of prisoners of war. A paradoxical situation was created: men who went into the battlefield with a considerable expectancy of death survived, while their families, left behind in supposed security, were annihilated. The author of the present article has proposed in his book Axis Rule in Occupied Europe that international law be changed so that in time of war the treatment of civilian populations will also be under supervisory control of an international body like the International Red Cross. The Swedish newspaper, Dagens Nyheter, of November 2, 1945, announced that the chairman of the Swedish Red Cross, Count Bernadotte referred to the author’s proposal as acceptable for consideration at a future conference of the International Red Cross, and declared that the Swedish Red Cross would support it. While the writer is gratified by this development, he hopes that other governments will support the proposal to change international law. including the following principles:
RAPHAEL LEMKIN, eminent Polish scholar, and author of many books and articles published in several languages, is adviser on foreign affairs to the War Department. In his recent book, Axis Rule in Occupied Europe, Dr. Lemkin originated concepts included in the indictment of German war criminals at the Nuremberg trials, where he served on the staff of the U. S. Chief of Counsel for Prosecution of Criminality. _______________
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