NUREMBERG AND THE DRAFTING OF THE GENOCIDE CONVENTION.

• Author: Schabas, William

1. LEMKIN IN NUREMBERG, 1946

   Leila may remember a 2007 conference on the Genocide Convention at Case Western Reserve University in Cleveland, organized by our friend and colleague Michael Scharf, in which we both participated. One of the very special guest speakers was Henry King, who shared a panel with two other icons: Benjamin Ferencz and Whitney Harris. The three had all been prosecutors at Nuremberg.

   I have a vivid recollection of Henry, who passed away a few years later, describing his encounter with Raphael Lemkin in the lobby of Nuremberg's Grand Hotel after the issuance of the judgment of the International Military Tribunal on October 1, 1946. Not quite two years earlier, Lemkin had published the book Axis Rule in Occupied Europe, in which he proposed a new word, "genocide." (3) Henry said that Lemkin seemed distraught; he was troubled and poorly groomed. Biographers of Lemkin have said he was under immense strain, having recently learned that his entire family in Poland had been murdered. Here is the written account of Henry's remarks:

   At that time, he was unshaven, his clothing was in tatters, and he looked disheveled. Lemkin was very upset. He was concerned that the decision of the International Military Tribunal (IMT)--the Nuremberg Court--did not go far enough in dealing with genocidal actions. This was because the IMT limited its judgment to wartime genocide and did not include peacetime genocide. At that time, Lemkin was very focused on pushing his points. After he had buttonholed me several times, I had to tell him that I was powerless to do anything about the limitation in the Court's judgment. (4) It is often thought that Lemkin was obsessed with the use of the word he had devised and that he was frustrated that the judges of the Tribunal did not employ it in their final judgment. That idea may have a grain of truth in it, but Henry's remarks in Cleveland suggest something different: Lemkin's objection was not about the nomenclature but rather about the scope of the crime. Lemkin was angry that the judgment at Nuremberg did not condemn Nazi atrocities perpetrated prior to the war, which would have required the judges to adopt a more expansive interpretation of crimes against humanity than they ultimately did. The selection of the label of genocide or crimes against humanity seems quite irrelevant to Lemkin's dissatisfaction. If the Tribunal had convicted some of the Nazi leaders for adopting racist laws in 1935 and inciting the Kristallnacht pogrom in 1938, Lemkin would probably have been satisfied.

   This understanding of Lemkin's attitude finds a degree of confirmation in the chapter on genocide in his famous book, which adopts a very broad approach to the notion of genocide that has many affinities with crimes against humanity. (5) Advocates of an expansive interpretation of the definition of genocide in the 1948 Convention might argue that this is a way of keeping faith with the intent of the man who devised the term. But that would be to view Lemkin as if he was Moses descending from the mountain with the Ten Commandments. However, the intent of international lawmakers should not be confused with the dreams of scholars about the progressive development of the law.

   Nazi anti-Semitism was discussed in some detail in the judgment of the International Military Tribunal. It referred to the 1935 Nuremberg laws and other discriminatory measures adopted in the years following the seizure of power. However, the judges rejected the prosecution's argument that anti-Semitism was in some way connected with preparations for aggressive war. "The Nazi persecution of Jews in Germany before the war, severe and repressive as it was, cannot compare, however, with the policy pursued during the war in the occupied territories," they wrote. The judgment explains that "[o]riginally the policy was similar to that which had been in force inside Germany. Jews were required to register, were forced to live in ghettos, to wear the yellow star, and were used as slave laborers." (6)

   This changed in the summer of 1941 following the invasion of the Soviet Union, when the "final solution" emerged. "This 'final solution' meant the extermination of the Jews, which early in 1939 Hitler had threatened would be one of the consequences of an outbreak of war," according to the judgment. (7) Nazi atrocities committed in Germany prior to the outbreak of the war might have fallen under the definition of crimes against humanity in the Charter of the International Military Tribunal but for a requirement, in the definition, that they be "in execution of or in connection with any crime within the jurisdiction of the Tribunal." (8)

   The raison d'etre for the nexus with armed conflict imposed upon crimes against humanity was bluntly explained by Robert Jackson at the London Conference, where the Charter was drafted:

   [O]rdinarily we do not consider that the acts of a government toward its own citizens warrant our interference. We have some regrettable circumstances at times in our own country in which minorities are unfairly treated. We think it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we became involved. We see no other basis on which we are justified in reaching the atrocities which were committed inside Germany, under German law, or even in violation of German law, by authorities of the German state. (9) As Jackson's remarks confirm, the exclusion of "peacetime genocide" was quite deliberate. Judges don't always faithfully respect the intent of those who draft legislation, but this time they did.

2. THE GENERAL ASSEMBLY RESOLUTION ON GENOCIDE IN 1946

   Following the judgment, Lemkin hurried back to New York City and began his campaign for a General Assembly resolution on genocide. Driven by his anger at the exclusion of "peacetime genocide" from the Nuremberg judgment, Lemkin quickly persuaded three delegations--Cuba, Panama, and India--to be the sponsors. The draft resolution he prepared noted that "the punishment of the very serious crime of genocide when committed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned." (10)

   Cuba's ambassador, Ernesto Dihigo, took the floor in the Sixth Committee of the General Assembly on November 22, 1946 to present the resolution, explaining that "[a]t the Nurnberg trials, it had not been possible to punish certain cases of genocide because they had been committed before the beginning of the war." (11) Expressing concern "that such crimes might remain unpunished owing to the principle of nullum crimen sine lege" the representative of Cuba asked that genocide be declared an international crime. "This was the purpose of the resolution." (12)

   As amended. Resolution 96(1) adopted by the General Assembly on December 11, 1946, called for the preparation of a convention on the crime of genocide. (13) Two years later, Article 1 of the Convention confirmed that "genocide, whether committed in time of peace or in time of war, is a crime under international law." (14) The 1946 resolution on the crime of genocide was adopted in the same breath as a resolution on the Nuremberg Principles. Resolution 95(1), entitled "Affirmation of the principles of International Law recognized by the Charter of the Nurnberg Tribunal," was adopted only minutes after Resolution 96(1) on the crime of genocide. Both resolutions had unanimous support, without any debate or vote in the plenary General Assembly. (15)

   Resolution 95(1) on the Nuremberg Principles had been proposed by the United States, (16) apparently at the initiative of the American judge at the Tribunal, Francis Biddle, who suggested the idea to President Truman. (17) The Sixth Committee of the General Assembly altered the text, replacing the word "codification" with "affirmation," which is stronger and implies not only the identification of the principles but also their endorsement. Nevertheless, the text of Resolution 95(1) didn't specify the contents of the Nuremberg Principles. Writing in 1947, Robert Jackson said that the General Assembly had given "general approval" to the principles of the trial. (18) Only in 1950 did the International Law Commission agree upon a draft of the principles. (19) Its text was not well received in the Sixth Committee, (20) and was never adopted by the General Assembly. (21)

3. THE 'SECRETARIAT DRAFT' OF THE GENOCIDE CONVENTION

   At first blush, the two 1946 resolutions on international criminal justice seem closely related, almost siblings. But Lemkin's temper tantrum in the Grand Hotel and Dihigo's speech in the Sixth Committee suggest dissatisfaction with one of the Nuremberg Principles, namely the imposition of a nexus or condition on crimes against humanity denying them application to atrocities perpetrated in peacetime. The apparent tension between the two resolutions adopted by the General Assembly was soon addressed in a memorandum by France, submitted in May 1947, at a time when the Secretariat was, in the midst of preparing a draft genocide convention in accordance with a mandate given by the Economic and Social Council.

   Referring to the two resolutions, France noted that the General Assembly "appears to desire to introduce important innovations" to the Charter of the International Military Tribunal and the judgment of the International Military Tribunal. "Not only is the hitherto admitted expression 'crime against humanity' replaced by a neologism, the term genocide, but the conception of the infringement is broadened," said France. It explained that Article 6(c) of the Charter provided a "restrictive enumeration of acts constituting crimes against humanity". In contrast, Resolution 96(1) of the General Assembly set out "an extremely general and vague...