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The Long and Tortured History of Genocide

As we commemorate Yom Ha’Shoah, reflecting on how the frameworks to prosecute genocide and crimes against humanity were constructed

Menachem Z. Rosensaft
April 29, 2019
Wikimedia Commons
Defendants at the Nuremberg Trials in their dock. In front row, from left to right: Hermann Göring, Rudolf Heß, Joachim von Ribbentrop, Wilhelm Keitel. In second row, from left to right: Karl Dönitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel.Wikimedia Commons
Wikimedia Commons
Defendants at the Nuremberg Trials in their dock. In front row, from left to right: Hermann Göring, Rudolf Heß, Joachim von Ribbentrop, Wilhelm Keitel. In second row, from left to right: Karl Dönitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel.Wikimedia Commons

On August 8, 1945, the United States, France, the United Kingdom, and the USSR declared crimes against humanity to be a criminal cause of action in the Charter of the International Military Tribunal (the IMT Charter). The purpose of this Charter was “the Prosecution and Punishment of the Major War Criminals of the European Axis.” In its first incarnation, crimes against humanity covered atrocities such as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population… or persecutions on political, racial or religious grounds.” Since then, this category of crimes has become engrained in international criminal law.

On December 9, 1948, after two years of intense debate, drafting, and redrafting, the United Nations General Assembly unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Under the Convention, which went into effect on January 12, 1951,

genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about

its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Almost 74 years after the promulgation of the IMT Charter, and more than 70 years since the adoption of the Genocide Convention, it seems appropriate to once again consider the origins and development of both crimes against humanity and the crime of genocide and to place them in their historical context. The goal of this article is to examine, admittedly with the benefit of 20/20 hindsight, how these two causes of action have fared, and if each has served its intended purpose.

As good a place as any to begin this overview and analysis is with the somber reminder that Nazi Germany did not invent the concept of annihilating entire populations based on identity, however defined. Such slaughters had taken place repeatedly throughout history. One need only consider the mass killing of the medieval Christian sect of the Cathars in Southern France during what is known as the Albigensian Crusade of the early 13th century. The Abbot Ardauld-Amalric informed Pope Innocent III that in the city of Béziers, “Our men spared no one, irrespective of rank, sex or age, and put to the sword almost 20,000 people.” Other examples include the 16th century massacres of the Aztecs and Incas by Spanish conquistadores.

Despite its lofty origins of the United States in Thomas Jefferson’s Declaration of Independence, we know that the United States proved not to be immune from a willingness to subject minorities to abysmal treatment. The abomination of slavery was not the only blight on 19th century American history. After Congress enacted the Removal Act of 1830, President Andrew Jackson’s administration forcibly and brutally relocated between 15,000 and 16,000 members of the Cherokee Nation from the southeastern part of the country to territories west of the Mississippi River. It is estimated that between 3,000 and 4,000 Cherokees died from hunger, disease, exhaustion and starvation on what has become known as the “Trail of Tears.”

During the early part of the 20th century—beginning in 1915—and under cover of World War I, Ottoman troops decimated the vast majority of the Ottoman Empire’s Armenian minority. On July 16, 1915, Henry Morgenthau, the US Ambassador to the Ottoman Empire, alerted the State Department from Constantinople that “Deportation of and excesses against peaceful Armenians is increasing and from harrowing reports of eye witnesses it appears that a campaign of race extermination is in progress.” In his memoirs, Morgenthau would subsequently write that, “Technically, of course, I had no right to interfere. According to the cold-blooded legalities of the situation, the treatment of Turkish subjects by the Turkish Government was purely a domestic affair.”

On January 25, 1919, a Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was appointed at the second plenary session of the Paris Peace Conference. Its mandate included the examination of violations of international law committed during World War I. In its report, the Commission listed a long series of offenses committed by the so-called Central Powers—that is Germany and the Austro-Hungarian Empire together with their allies, including the Ottoman Empire—such as murders and massacres, torture of civilians, deliberate starvation of civilians, rape, abduction of girls and women for the purpose of enforced prostitution, deportation of civilians, and internment of civilians under inhuman conditions. The Commission found that:

In spite of the explicit regulations, of established customs, and of the clear dictates of humanity, Germany and her allies have piled outrage upon outrage… Violations of the rights of combatants, of the rights of civilians, and of the rights of both, are multiplied in this list of the most cruel practices which primitive barbarism, aided by all the resources of modern science, could devise for the execution of a system of terrorism carefully planned and carried out to the end.

The Commission concluded that the war had been carried out by the Central Powers “by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity.” The Commission further concluded that:

All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.

In a strong Memorandum of Reservations, the U.S. members of the Commission argued that “moral offenses, however iniquitous and infamous and however terrible in their results, were beyond the reach of judicial procedure and subject only to moral sanctions.” Rejecting the very notion that there was such a thing as “laws of humanity” in international law, the U.S. members of the Commission emphasized that while the laws and customs of war were “a standard certain” in the practice of nations, “[t]he laws and principles of humanity vary with individual, which, if for no other reason, should exclude them from consideration in a court of justice, especially one charged with the administration of criminal law.”

As Canadian international human rights lawyer David Matas, has noted in his excellent article on the lessons of World War I with respect to prosecuting crimes against humanity:

As a result of the disagreement among the Commission [on the Responsibility of the Authors of the War and on Enforcement of Penalties], the main peace treaty following World War I, the Treaty of Versailles, contained nothing about crimes against humanity. Because the Allies could not agree on whether to include language creating liability for such acts, the matter was dropped.

The cold reality of pre-World War II international law was that there was virtually nothing to prevent governments from persecuting, oppressing and even murdering minorities or other groups in their respective countries or under their military control. The exceedingly limited protections that the Hague Conventions of 1899 and 1907 professed to provide to civilian populations in times of armed conflict had no teeth and could be – indeed were – were widely ignored with impunity.

Mid-way through World War II, the situation changed dramatically. The Third Reich’s policy to systematically and brutally annihilate European Jewry as well as mass-killings of other groups by the Hitlerite regime and its multi-national accomplices resulted in a series of denunciations and warnings that the perpetrators of what was commonly referred to, for lack of a better term, as “atrocities” would in due course be brought to justice. The relevant question, however, was how this might be accomplished in the absence of any body of law prohibiting such atrocities. In an August 24, 1941 radio broadcast, Prime Minister Winston S. Churchill referred to the carnage as “a crime without a name.” It went without saying that before a crime could be prosecuted before any court or tribunal, it first had to be clearly designated and defined as a matter of law.

In 1944, Raphael Lemkin, Polish-Jewish legal scholar who had fled Poland at the outbreak of World War II and eventually found refuge in the United States, conceptualized both the name and scope of such a crime. In his book, Axis Rule in Occupied Europe, published by the Carnegie Foundation for International Peace, Lemkin devoted a chapter to what he called “Genocide,” an original term he described as follows:

By “genocide” we mean the destruction of a nation or of an ethnic group. . . . Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify 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. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.

Lemkin’s new word caught on surprisingly fast. Referring to the War Refugee Board’s release of a report that featured eyewitness accounts of the mass murder of Jews by poison gas at the German extermination camps of Auschwitz and Birkenau, the Washington Post observed on December 3, 1944, in an editorial titled appropriately enough “Genocide”:

It is a mistake, perhaps, to call these killings “atrocities.” An atrocity is a wanton brutality. There were unspeakable atrocities at Auschwitz and Birkenau. But the point about these killings is that they were systematic and purposeful. The gas chambers and furnaces were not improvisations; they were scientifically designed instruments for the extermination of an entire ethnic group. On the scale practiced by the Germans, this is something new. . . . One of the vital steps in the punishment of war guilt, we believe, is to secure international agreement now on the outlawing of genocide.

On May 2, 1945, President Truman issued Executive Order 9547 appointing US Supreme Court Associate Justice Robert H. Jackson “as the Representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal.” Two days later, Lemkin sent Jackson a copy of his article, “Genocide—A Modern Crime,” published in the April 1945 issue of Free World magazine. Later that month, Lemkin received a temporary appointment in the War Crimes Office of the Judge Advocate’s Office in the Pentagon.

At this point in time, the formulation of the precise charges to be brought against the major Nazi war criminals was still somewhat vague, especially with regard to the mass killing of Jews, Roma, and other civilians. In his June 6, 1945, Report to the President on Atrocities and War Crimes, Jackson referred to this category of crimes as “Atrocities and offenses, including atrocities and persecutions on racial or religious grounds.”

While Lemkin zealously promoted the use of the term “genocide” in the then contemplated prosecution of Nazi war criminals, a more senior authority on international criminal law, had another suggestion. Professor Hersch Lauterpacht, the Whewell Professor of International Law at the University of Cambridge, has been described by historian Michael Marrus as “the most important academic promoter of the idea that the individual human being should be the subject of international law, with rights and duties rooted in the law of nations.” Over lunch at Cambridge in late July 1945, Lauterpacht reached back in time to post-World War I terminology and recommended to Jackson that a different but equally original and untested criminal cause of action—namely, crimes against humanity—be included in the Charter of the International Military Tribunal (IMT) to cover atrocities committed against civilians. “Crimes against humanity” was also the term that President Roosevelt had used in a Statement issued on March 24, 1944, to describe “the systematic torture and murder of civilians – men, women and children – by the Nazis and the Japanese,” as well as “the wholesale systematic murder of the Jews of Europe.” My friend Jonathan Bush has argued, incidentally, that others may have suggested the use of this particular formulation as well. Be that as it may, Jackson was persuaded, and he in turn persuaded his British, Soviet, and French counterparts.

Under Article 6 (c) of the IMT Charter, crimes against humanity applied to:

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

This new cause of action was unprecedented. For the first time, individuals, including high ranking government officials, could be held criminally accountable before an international judicial tribunal for the severe mistreatment and systematic murder of civilians, including their own nationals.

It is critical to bear in mind, however, that Article 6 (c) – together with the rest of the Charter for that matter—was intended to only cover crimes committed during or with a direct nexus to World War II. According to the IMT’s judgment, even though “[t]he policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out,” and while “[t]he persecution of Jews during the same period is established beyond all doubt,” these “revolting and horrible” pre-war crimes did not fall within the intended scope of Article 6 (c). On the other hand, the Tribunal held that those “inhumane acts” charged in the IMT indictment that were “committed after the beginning of the war” and “did not constitute war crimes . . .were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.”

In other words, crimes against humanity as set forth in the IMT Charter were inexorably linked to war crimes. This war nexus, as it has come to be known, would bedevil several generations of jurists and legal scholars.

In the summer and fall of 1945, the prosecutors preparing for the IMT were largely ambivalent if not unenthusiastic at the thought of introducing yet another new concept into the documents they were drafting. Nevertheless, Lemkin’s persistent—by some accounts obsessive—importuning on behalf of the term genocide eventually bore fruit.

When the indictment of the major Nazi war criminals was handed down in mid-October, the defendants were charged with conducting “deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.”

Significantly, this solitary reference to genocide in the indictment was not in connection with crimes against humanity but rather in the section on war crimes. Lemkin then, to the annoyance of other members of the team that had drafted the indictment, made sure that the new word’s official recognition was heralded in a news item in London’s Sunday Times on October 21, 1945, together with mention of the fact that it had been “coined … by Prof. Raphael Lemkin of Duke University … who is now in London.”

As best I can ascertain, this was the first formal use of the word “genocide” in an official public legal document.

When the International Military Tribunal convened at Nuremberg on November 20, 1945, the prosecution did not invoke the term “genocide” and instead laid forth evidence regarding the atrocities committed by Nazi Germany within the scope of war crimes and crimes against humanity as set forth in the IMT Charter and the IMT indictment. This clearly did not please Lemkin, who was still hoping, in his own words, that “the Nuremberg Tribunal would issue a verdict that could at least have some limited use as a precedent for bringing up the issue of a Genocide Convention at the U.N. This was the reason I went to Nuremberg in May 1946.”

At Nuremberg, Lemkin apparently spent most if not all of his time trying to persuade prosecutors and reporters to refer to genocide as often and as prominently as possible. According to Michael Marrus,

Those who caught a glimpse of him at Nuremberg saw him as a driven man. The young American soldier/attorney, Benjamin Ferencz, later a prosecutor himself, described Lemkin as a “nudnik”—a person whose dogged persistence on a matter turns him into a pest. Another American prosecutor, Henry T. King, Jr., who thought he was a “crank,” remembered running into him at the Grand Hotel: “At that time he was unshaven, his clothing in tatters, and he looked disheveled. … Lemkin was very upset. He was concerned that the decision of the International Military Tribunal … did not go far enough in dealing with genocidal actions.”

Most probably as a direct result of Lemkin’s persistent lobbying, the term “genocide” was actually used a number of times in the final stretch of the IMT. Probably the most gratifying of these from Lemkin’s perspective came on June 25, 1946, when Sir David Maxwell-Fyfe, the Deputy Chief Prosecutor for the United Kingdom, declared to former German Foreign Minister, Konstantin von Neurath:

You know that in the Indictment in this Trial we are charging you and your fellow defendants, among many other things, with genocide, which we say is the extermination of racial and national groups, or, as it has been put in the well-known book of Professor Lemkin, “a co-ordinated 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.”

Sir Hartley Shawcross, the British Chief Prosecutor, referred to “genocide” no less than three times in his closing argument on July 27, 1946, and the following day, two French prosecutors also used the term. Auguste Champetier de Ribes, the Chief Prosecutor for the French Republic, referred to “the scientific and systematic extermination of millions of human beings and more especially of certain national or religious groups whose existence hampered the hegemony of the Germanic race” as “a crime so monstrous, so undreamt of in history throughout the Christian era up to the birth of Hitlerism, that the term ‘genocide’ has had to be coined to define it.” And Charles Dubost, the French Deputy Chief Prosecutor, said that defendant Ernst Kaltenbrunner who had been the chief of the dreaded RSHA, the Third Reich’s Security Main Office, and head of the Security Police, “was one of the most important factors in the criminal organization which carried out the policy of extermination and genocide.”

It is perhaps ironic that the one other time—as best I can ascertain—that the term was at Nuremberg was on August 31, 1946, when defendant Alfred Rosenberg, the Nazi racial ideologue, told the Tribunal before the verdicts were handed down that “I frankly welcome the idea that a crime of genocide is to be outlawed by international agreement and placed under the severest penalties, with the natural provision that neither now nor in the future shall genocide be permitted in any way against the German people either.”

Lemkin also enlisted the media in his campaign. The New York Times noted in an editorial entitled “Genocide” on August 26, 1946:

There is need of the term. For lack of it, Justice Jackson could dwell only on its implications in his historical opening address. … If Professor Lemkin has his way genocide will be established as an international crime, which like piracy is punishable in any country regardless of the defendant’s nationality. … By implication genocide has already been recognized as a distinct crime, with a distinct technique and distinct consequences. It now remains to incorporate the term in international law, which is what Professor Lemkin has already half accomplished.

Thereafter, the proposed legal definition of genocide evolved erratically, morphing within the next two years into its formulation in the Genocide Convention. On December 11, 1946, the UN General Assembly unanimously adopted Resolution 96 (I) which rather broadly describes genocide as “a denial of the right of existence of entire human groups,” expanded the term considerably to cover crimes “committed on religious, racial, political or any other grounds.” and called for the “drawing up of a draft convention on the crime of genocide.”

The first version of such a convention, prepared by the UN Secretariat’s Human Rights Division in 1947 in consultation with three experts, Lemkin among them, provided that its purpose was “to prevent the destruction of racial, national, linguistic, religious or political groups of human beings.” This draft also made reference to distinct physical, biological and cultural types of genocide, following the approach Lemkin had taken in Axis Rule. It is noteworthy that while the catch-all “any other grounds” of Resolution 96 (I) had been dropped, “political” remained as a category and “linguistic” had been added.

Pandemonium ensued over the course of the next two years. The USSR, for instance, insisted that political groups be excluded from coverage, and the US and France objected to any reference to cultural genocide.

The United Kingdom questioned the very need for such a convention, since genocide had already been recognized as a crime under international law by virtue of the IMT’s judgment at Nuremberg. Dismissing the General Assembly resolution on genocide as “a useless resolution” Eric Beckett, the legal advisor to the British Foreign Office, wrote to his colleagues on February 26, 1947, in an internal communication that “our attitude to it generally must be that we should not mind if it got lost somewhere and died a natural death, and at the most we do not want much time and expense being wasted in drawing up a perfectly useless convention.”

France was less contemptuous, contending that genocide should be treated as “merely one of the aspects” of crimes against humanity. The two-volume Travaux Préparatoires (preparatory documents) for the Genocide Convention run to more than 2,000 pages.

Political groups continued to be included in drafts of the convention as late November 23, 1948. On November 29, 1948, at a meeting of the UN General Assembly’s Sixth Committee, charged with the consideration of questions of international law, the delegations of Iran, Egypt and Uruguay proposed that the committee “once more examine the question of the exclusion of political groups from the enumeration of groups protected under the convention on genocide.” Specifically, the Egyptian delegate pointed out that the inclusion of political groups “would be a serious obstacle to the ratification of the convention by a large number of States.” The US delegate then declared that “in a conciliatory spirit and in order to avoid the possibility that the application of the convention to political groups might prevent certain countries from acceding to it, he would support the proposal to delete from article II [of the Convention] the provisions relating to political groups.” The Sixth Committee then proceeded to remove political groups from the draft convention. Following this vote, the Chinese delegate expressed his belief “that at a time of ideological strife, political groups stood in greater need of protection than national or religious groups.”

To make a long, complex story no longer than necessary, the final language of the Genocide Convention defines genocide as specified “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

Cultural genocide had been dropped altogether; political and linguistic groups were out, but “ethnical” had been added as a covered category; and there was no mention of any “other grounds” that might have given the Convention some flexibility.

It is clear, therefore, that the legal definition of genocide that has become ingrained in international law is not some type of sacrosanct juridical formulation. On the contrary, it is the result of a series of politically motivated and often pragmatic compromises.

One of the most controversial and perplexing aspects of the Genocide Convention over the years has been its seemingly unequivocal yet vague and undefined mandate of prevention.

The preliminary threshold question was whether the duty to prevent genocide applied only domestically or more broadly. Although the preamble of the first draft of the Convention had the parties to it “pledge themselves to prevent and to repress such acts [i.e., genocide] wherever they may occur,” Article 1 of the adopted version only provides that the ”Contracting Parties . . . undertake to prevent” the crime of genocide without stating clearly whether the Convention was intended to have any extraterritorial reach.

Indeed, the Convention’s only reference to possible international preventative measures is in Article 8 that allows but does not mandate any party to the Convention to “call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide…” Nehemiah Robinson, one of the most respected early commentators observed that the “principle of universality was abandoned” in the Convention because it was believed to be “contrary to the principles of international law and would violate the sovereign rights of a State by permitting a foreign State to punish acts committed outside of its territory or by foreigners.”

Accordingly, having determined that jurisdiction under the Convention “would be confined to a territorial basis,” the authors of “Genocide: A Commentary on the Convention” in the 1949 Yale Law Journal concluded that except in those “rare instances” where a State undertook to “suppress small-scale genocidal eruptions not sponsored by national governments,”

genocide would not be susceptible of punishment by domestic authority. Genocide, as distinguished from a series of individual crimes such as assault or murder, must involve the planned destruction of a group. To carry such a program to successful completion would almost necessarily require active or silent support of the State having territorial jurisdiction of the offense. Either domestic law would be modified to give legal endorsement to the acts, or else the State would refuse to enforce existent law by failing judicially to characterize the acts as genocide or by completely ignoring their existence. Offending State leaders cannot be expected to punish themselves.

The jurisprudential and academic mindset in this regard has evolved considerably in the intervening years. By 2001, the late Professor M. Cherif Bassiouni noted that universality of jurisdiction for genocide had become recognized in international law “even though there is no state practice to support that argument.”

A further complication arose from the fact that the Convention does not provide any guidance as to precisely what the Article 1 obligation to prevent entails. What must a party to the Convention actually do when confronted with a real or potential genocide? Is armed intervention required? Does public denunciation—what Samantha Power has referred to as “calling a genocide a genocide”—qualify as a preventative measure? What about providing protection of sanctuary to victims or intended victims? Is the imposition of economic or other diplomatic sanctions sufficient? In light of this uncertainty, government officials confronted with real or potential incidents of genocide in large part chose the path of least resistance: they punted.

In her Pulitzer Prize winning “A Problem from Hell”: America and the Age of Genocide, Samantha Power described in excruciating detail the verbal contortions senior officials of both the George H.W. Bush and Bill Clinton administrations went through in the early 1990s to avoid using the “g-word” in connection with the atrocities perpetrated by Bosnian Serbs against Bosnian Muslims. “In Bosnia, I think, we all got ethnic cleansing mixed up with genocide,” National Security Advisor Brent Scowcroft said at one point. “To me they are different terms. The horror of them is similar, but the purpose is not. . . . There is a proscription on genocide, but there is not a proscription on killing people.”

Asked by Representative Frank McCloskey from Indiana whether “the outrageous Serb systematic barbarism amounts to genocide,” Secretary of State Warren Christopher refused to commit himself:

With respect to the definition of the circumstances in Bosnia, we certainly will reply to that… I’ve said several times that the conduct there is an atrocity. The killing, the raping, the ethnic cleansing is definitely an atrocious set of acts. Whether it meets the technical legal definition of genocide is a matter that we’ll look into and get back to you.

In 2007, the International Court of Justice (ICJ) made clear that doing nothing was not an option. After determining that Bosnian Serbs had perpetrated a genocide against Bosnian Muslims at Srebrenica in July of 1995, the ICJ concluded in the Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide, brought by Bosnia and Herzegovina against Serbia and Montenegro, that the Federal Republic of Yugoslavia (FRY), which had been reconstituted in 2003 as the State Union of Serbia and Montenegro, had “violated its obligation to prevent the Srebrenica genocide in such a manner as to engage its international responsibility.” In so doing, the ICJ laid out what it considered to be “the specific scope of the duty to prevent in the Genocide Convention,” holding that parties to the Convention must

employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. . . . [A] State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.

Despite this seemingly strong language, the ICJ did not impose any consequences on the Republic of Serbia, as the successor to the State Union of Serbia and Montenegro, for the FRY’s inaction with respect to the Srebrenica genocide. The Court held that its finding that the FRY had breached its obligation to prevent genocide “constitute[s] appropriate satisfaction, and that the case is not one in which an order for payment of compensation . . . would be appropriate.”

Describing this part of the ICJ’s reasoning as “indefensible,” Marko Milanović, a former law clerk at the ICJ who is now Professor of Public International Law at the University of Nottingham School of Law, wrote in the September 2007 issue of the European Journal of International Law:

It is to be regretted that the part of the judgment which deals with the obligation to prevent genocide is at the same time the most promising and the most disappointing. With one hand the Court makes the obligation to prevent genocide a truly global duty of every state to do what it reasonably can, while with the other the Court emasculates this obligation by deciding that in any practically conceivable set of circumstances a declaratory judgment would be the only appropriate remedy.

In addition, we cannot allow ourselves to ignore the tragic reality that although the international community since 1945 has done an adequate even if not spectacular job in punishing perpetrators of genocides and crimes against humanity, it has failed abysmally to prevent such horrors from taking place, even when they had ample warning of impending disaster. A few examples are illustrative of the problem.

On April 22, 1993, more than two years before the massacre of thousands of Bosnian men and boys at Srebrenica, Nobel Peace Prize laureate Elie Wiesel turned to President Bill Clinton at the opening of the United States Holocaust Memorial Museum (USHMM) and said:

Mr. President, I cannot not tell you something. I have been in the former Yugoslavia last fall. I cannot sleep since for what I have seen. As a Jew I am saying that we must do something to stop the bloodshed in that country! People fight each other and children die. Why? Something, anything must be done.

On January 11, 1994, three months before the Rwandan genocide, Brigadier General Roméo Dallaire, the commander of the United Nations peacekeeping forces in Rwanda, warned his superiors at UN headquarters in New York in vain that Hutu militias were planning mass killings of Tutsis. Since 2015, the USHMM has, in its own words, “been sounding the alarm about the potential risk of genocide and other mass atrocities being perpetrated against the Rohingya [in Myanmar]. These warnings have gone largely unheeded, leading to indescribable human suffering.”

In A Problem from Hell, Samantha Power describes an incident that encapsulates the blatant disconnect between bureaucratic pragmatism taken to its extreme and the essence of fundamental morality. Referring to the human rights violations then taking place in Yugoslavia, Elie Wiesel exclaimed to Undersecretary of State for Political Affairs Peter Tarnoff at a State Department lunch on April 28, 1993, “There are camps, for heaven’s sake! Can’t you just liberate one of them?” Power continued:

Tarnoff did not respond but Ralph Johnson, the principal deputy assistant secretary for European affairs, attempted to defend the administration. “We’re afraid that if we did try to liberate them, there would be retaliations and the prisoners would be killed,” Johnson said. After a long, awkward silence, Wiesel looked up, eyes flashing, and he said quietly, “Do you realize that that is precisely what the State Department said during World War II?”

Crimes against humanity, meanwhile, developed on a parallel track as a cause of action in international criminal law.

In December 1945, only a few months after the adoption of the IMT Charter, the Allied Control Council that oversaw the administration of postwar Germany promulgated Control Council Law No. 10 (CCL 10) that empowered the US, Great Britain, the USSR, and France to prosecute “war criminals and other similar offenders other than those dealt with in the International Military Tribunal” accused of war crimes, crimes against peace, and crimes against humanity within their respective zones of occupation. Although modeled on the IMT Charter, the crimes against humanity provision of CCL 10 differed from its IMT Charter counterpart in two significant respects: rape was added as an offense, and the explicit war nexus of Article 6 (c) of the IMT Charter was removed. CCL 10 defined crimes against humanity as:

Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

However, since the preamble to CCL 10 specifically referred back to the IMT Charter, those post-IMT American Nuremberg tribunals that considered the matter, were divided on whether the war nexus remained as an intrinsic, even if not explicitly stated, element of crimes against humanity. As Professor Beth Van Schaack, who would go on to serve as Deputy to the Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice of the US Department of State, noted in a 1998 article in the Columbia Journal of Transnational Law,

Two tribunals interpreted the terms of the Law literally and announced that crimes against humanity could be perpetrated and prosecuted independent of a state of war. However, the legal weight to be accorded these determinations is unclear given that they were arguably mere obiter dicta. The trials that directly addressed the issue adhered to the Nuremberg precedent and incorporated the war nexus requirement into the definition of crimes against humanity in CCL 10. These tribunals . . . justified this departure from the text of CCL 10 on the force of the Nuremberg precedent and the need to maintain a distinction between crimes against humanity and ordinary domestic crimes.

In United States v. Ohlendorf, the case brought against commanders of the Einsatzgruppen, the specialized killing squads that murdered millions of Jews, Roma, Communist officials and other labelled as undesirables in mass shooting operations, the tribunal noted, albeit in dictum, that is, remarks lacking the force of law, that “an evaluation of international right and wrong, which heretofore existed only in the heart of mankind, has now been written into the books of men as the law of humanity. This law is not restricted to events of war. It envisages the protection of humanity at all times.” According to the Ohlendorf tribunal, the war nexus limitation was removed from CCL 10 “so that the present Tribunal has jurisdiction to try all crimes against humanity as long known and understood under the general principles of criminal law.”

Along the same lines, the tribunal in United States v. Altstoetter, the so-called Justice Case on which the motion picture Judgment at Nuremberg was based, noted in passing that the war nexus language of the IMT Charter had been “deliberately omitted” from the CCL 10 definition of crimes against humanity.

In contrast, the tribunals in United States v. Flick, one of the cases brought against German industrialists accused of exploiting slave labor, and United States v. von Weizsaecker, a case against 21 senior German government officials, reached the opposite conclusion. In the Flick case, for example, the tribunal held specifically that the omission of the war nexus language from the CCL 10 definition of crimes against humanity did not provide jurisdiction over crimes committed before the outbreak of World War II:

It is argued that the omission of [the war nexus] phrase from Control Council Law No. 10 evidences an intent to broaden the jurisdiction of this Tribunal to include such crimes. We find no support for the argument in express language of Law No. 10. To reach the desired conclusion its advocates must resolve ambiguity by a process of statutory construction. Jurisdiction is not to be presumed. A court should not reach out for power beyond the clearly defined bounds of its chartering legislation. . . . We conceive the only purpose of this Tribunal is to bring to trial war criminals that have not already been tried. Implicit in all of this chartering legislation is the purpose to provide for punishment of crimes committed during the war or in connection with the war. We look in vain for language evincing any other purpose. Crimes committed before the war and having no connection therewith were not in contemplation.

Consequently, Professor Van Schaack concluded that:

Although the war nexus requirement was not an express element of the offense of crimes against humanity in CCL 10… those [post-IMT American Nuremberg] tribunals that addressed the question considered themselves bound by the Nuremberg Tribunal’s precedent and accordingly treated the war nexus requirement as an essential element of the offense to be proven by the prosecution. This staying power of the war nexus requirement reveals a profound ambivalence among international lawyers of that era about the propriety of international law reaching inhumane acts that occurred entirely within the boundaries of a sovereign state.

Against this backdrop, international human rights lawyers have struggled to incorporate crimes against humanity into the body of international criminal law. On December 11, 1946, the same day it adopted Resolution 96 (I) that declared genocide to be a crime under international law, the UN General Assembly also affirmed, in Resolution 95 (I), “the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal,” and directed the Committee on the codification of international law (established earlier that day by Resolution 94 (I))

to treat as a matter of primary importance plans for the formulation, in the context of a general codification of offenses against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal.

Since then, crimes against humanity have been included as a cause of action in the statutes of the International Criminal Court (ICC) as well as the various international criminal tribunals set up to deal with atrocities committed in the former Yugoslavia, Rwanda, Cambodia, and elsewhere. In essence, the international legal community has accepted Hersch Lauterpacht’s contention in his 1950 book, International Law and Human Rights (at page 36), that:

To lay down that crimes against humanity are punishable is . . . to assert the existence of rights of man grounded in a law superior to the law of the State. Thus, upon analysis, the enactment of crimes against humanity in an international instrument signifies the acknowledgment of fundamental rights of the individual recognized by international law.

As legal historian Leslie C. Green has pointed out, “with the development of the law concerning human rights and humanitarian law,” the concept of crimes against humanity was “widened” in the decades after Nuremberg. “Perhaps the most significant statement to this effect,” Green wrote, “ is to be found in the Interim Report of the Commission established to investigate crimes committed during the civil war in Rwanda:

If the normative content of “crimes against humanity” had remained frozen in its Nuremberg form, then it could not possibly apply to the situation in Rwanda … because there was not a “war” in the classic sense of an inter-State or international armed conflict.

However, the normative content of “crimes against humanity” – originally employed by the Nuremberg tribunal for its own specific purposes in connection with the Second World War-has undergone a substantial evolution ….

“[C]rimes against humanity” finds its very origins in “principles of humanity” first invoked in the early 1800s by a State to denounce another State’s human rights violations of its own citizens. Thus, “crimes against humanity” as a juridical concept was conceived early on to apply to individuals regardless as to whether or not the criminal act was perpetrated during a state of armed conflict or not and regardless of the nationality of the perpetrator or victim. The content and legal status of the norm since Nuremberg has been broadened and expanded through certain international human rights instruments adopted by the United Nations since 1945 . . . .

The Commission of Experts on Rwanda considers that “crimes against humanity” are gross violations of fundamental rules of humanitarian and human rights law committed by persons demonstrably linked to a party to the conflict as part of an official policy based on discrimination against an identifiable group of persons, irrespective of war and the nationality of the victims.

In addition to the core elements set forth in the IMT Charter – murder, extermination, enslavement, deportation, other inhumane acts committed against civilian populations, and persecutions on political, racial or religious grounds – imprisonment, torture, and rape (already included in CCL 10) are listed as offenses covered by crimes against humanity in the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and the Rome Statute of the International Criminal Court (ICC) has expanded the cause of action even further, as has the International Law Commission’s Draft Code of Offenses Against the Peace and Security of Mankind.

It took almost five decades after the adoption of the Genocide Convention for an international tribunal to hand down a genocide conviction. On September 2, 1998, the trial chamber of the ICTR convicted Jean-Paul Akayesu, a Rwandan Hutu mayor, of genocide as well as a series of crimes against humanity. Two days later, the same ICTR trial chamber accepted former Rwandan Prime Minister Jean Kambanda’s guilty plea to genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide, crimes against humanity (murder), and crimes against humanity (extermination).

While it is true that the ICTR did find a succession of other defendants guilty of genocide, the only genocide convictions by the ICTY arising out of the atrocities perpetrated by Bosnian Serb forces against Bosnian Muslims were in connection with the Srebrenica massacre; the other ICTY convictions were predominantly for crimes against humanity. It is significant in this connection that a review of the evidence in the various ICTY cases does not suggest that the “crimes against humanity” killings were any less vicious or any less heinous or methodical than the mass shootings of between 7,475 and 8,372 men and boys from Srebrenica in July 1995.

The illogical dichotomy between genocide and crimes against humanity as distinct criminal causes of action became starkly apparent this past November when the Extraordinary Chambers in the Courts of Cambodia determined that the Khmer Rouge had committed genocide against the Muslim Cham minority and Vietnamese during the Pol Pot-led reign of terror between 1975 and 1979, and convicted two surviving Khmer Rouge leaders – 92-year-old Nuon Che and 87-year-old Khieu Samphan – of genocide. Both had previously been convicted of, and had received life sentences for, crimes against humanity.

This was the first time that a court had concluded that the Khmer Rouge had perpetrated genocide against members of the Cambodian people, despite the uncontroverted fact that at least 1.7 million Cambodians—17 percent of the population—had been murdered.

More specifically, it is estimated that around 100,000 of 250,000 Cham Muslims and around 50,000 Vietnamese were murdered by the Khmer Rouge. The remaining more-than 1,680,000 victims of the Khmer Rouge – including intellectuals, doctors, teachers, religious leaders, and just about anyone Pol Pot considered an enemy of his fanatical Marxist-rooted agrarian-utopian ideology – are acknowledged to have been the victims of crimes against humanity, but not of genocide.

Inherent in this distinction is the absurd—bordering, in my opinion, on the profane—implication that genocide is a greater crime than “mere” crimes against humanity, or that a perpetrator of crimes against humanity should somehow be considered a less reprehensible criminal than a genocidaire. Unfortunately, by referring to genocide as the “crime of crimes”—the subtitle of Professor William Schabas’ masterful treatise on Genocide in International Law—this is precisely the erroneous misconception that has become all too commonplace in the popular, and often even in the legal, understanding of genocide as a criminal cause of action.

The difference between genocide and crimes against humanity was explained cogently by Philippe Sands, a professor of laws and director of the Centre on International Courts and Tribunals at University College London and the author of East West Street: On the Origins of “Genocide” and “Crimes Against Humanity”.

Using the hypothetical murder of 100,000 Jews or Poles from the Ukrainian city of Lviv as an example, Sands wrote that,

For Lauterpacht, the killing of individuals if part of a systematic plan, would be a crime against humanity. For Lemkin, the focus was genocide, the killing of the many with the intention of destroying the group of which they were a part. For a prosecutor today, the difference between the two was largely the question of establishing intent: to prove genocide, you needed to show that the act of killing was motivated by an intent to destroy the group, whereas for crimes against humanity no such intent had to be shown.

All of which begs the question of whether we might not have been better off with a convention on the prevention and punishment of crimes against humanity, with genocide as a subset, rather than the more narrowly focused Genocide Convention. Indeed, Professor M. Cherif Bassiouni made the case for such a specialized convention in a 1994 article in the Columbia Journal of Transnational Law, and in November 2009 prosecutors of the ICTY, the ICTR, the ICC, the Extraordinary Chambers in the Courts of Cambodia, the Special Court of Sierra Leone, and the Special Tribunal for Lebanon jointly called on states to “seriously consider the adoption of a convention on the Suppression and Punishment of Crimes against Humanity.”

In his Report to the President following the conclusion of the IMT, Justice Jackson wrote, “I am consoled by the fact that in proceedings of this novelty, errors and missteps may also be instructive to the future.” By now, the Genocide Convention’s definition of the crime of genocide has become engrained in international criminal and human rights law as have crimes against humanity more generally. I submit that both jurisprudential concepts came onto the scene at a moment in history when it would have been difficult if not impossible for the international community to avoid embracing them. As discussed above, neither cause of action is without its limitations. For better or worse, however, and to paraphrase an overused contemporary cliché, they are what they are, and we must be grateful that we have them, regardless of any “errors and missteps” along the way.

Menachem Z. Rosensaft teaches about the law of genocide at the law schools of Columbia and Cornell universities and is general counsel emeritus of the World Jewish Congress. He is the author of Poems Born in Bergen-Belsen.