A Problem from Hell: America and the Age of Genocide. Samantha Power
few doubted that the United States would be one of the first countries to ratify it. The UN passage had been an American effort in many respects. In 1946 Lemkin had teamed up with several State Department lawyers to prepare the first draft of the treaty. It had been U.S. delegate at the United Nations John Maktos who chaired the Ad Hoc Committee of the Economic and Social Council that assembled another version of the text in Geneva. The United States had been the first country to sign the pact at the General Assembly in 1948.
In June 1949 President Harry Truman heartily endorsed the genocide convention, calling on U.S. senators to ratify it because America had “long been a symbol of freedom and democratic progress to peoples less favored” and because it was time to outlaw the “world-shocking crime of genocide.” Dean Rusk, then deputy undersecretary of state, stressed that ratification was needed to “demonstrate to the rest of the world that the United States is determined to maintain its moral leadership in international affairs.” Securing the two-thirds Senate vote seemed a mere formality.
But American spokesmen for the convention had to look outside the realm of human rights to find examples of treaties that earned U.S. support. Rusk testified, “It should be noted that the Genocide Convention does not represent the first instance in which the United States has cooperated with other nations to suppress criminal or quasicriminal conduct which has become a matter of international concern.” He went on, anticlimactically, to list those instances of international cooperation: “The United States is party to the multilateral Convention for Protection of Submarine Cables of 1884…The United States is party to a convention of 1911 with Great Britain, Russia, and Japan for the preservation and protection of fur seals in the North Pacific Ocean.” Treaties that obliged signatories to punish those who injured submarine cables or pelagic seals did not exactly constitute the same challenge to international policymakers as the ban on genocide. Thus, there was something absurd if admirable in Rusk’s attempt to build the case that genocide convention ratification constituted the natural culmination of previous campaigns. “The United States has cooperated in the past with other nations in the suppression of such lesser offenses as the killing of fur seals,” Rusk noted. “It is natural that other nations look to the United States for cooperation in the suppression of the most heinous offense of all, the destruction of human groups.”4 Rusk would later admit in his testimony that there was no evidence the seal convention had ever been violated.
The Critics
The early U.S. leadership on the genocide treaty largely evaporated in the months and years that followed. Some of the opposition to U.S. ratification was rooted in legitimate grievances about the text of the law. The convention’s plain wording was not terribly specific about the nature of the violence that needed to occur in order to trigger a global or national response. Lemkin had wanted to create a sacrosanct category of crime that the world would team up to prevent and punish. But the new convention did not clear up confusion about the meaning of “genocide.” Far from constituting a high-bar trigger, critics claimed the genocide pact offered a low-bar trampoline.
“Genocide,” as defined in the UN treaty, suffered then (as it suffers now) from several inherent definitional problems. One is what might be called a numbers problem. On the question of how many individuals have to be killed and/or expelled from their homes in order for mass murder or ethnic cleansing to amount to genocide, there is—and can be—no consensus. If the law were to require a pre-specified percentage of killings before outsiders responded, perpetrators would be granted a free reign up to a dastardly point. The law would be little use if it kicked in only when a group had been entirely or largely eliminated. By focusing on the perpetrators’ intentions and whether they were attempting to destroy a collective, the law’s drafters thought they might ensure that diagnosis of and action against genocide would not come too late. The broader, intentbased definition was essential if statesmen hoped to nip the crime in the bud.
But some U.S. senators feared the expansive language would be used to target Americans. The law’s most potent foe in the United States was the respected American Bar Association (ABA). Alfred T. Schweppe, chairman of the ABA’s Committee on Peace and Law Through the United Nations, challenged the convention’s definition of “genocide” before a U.S. Senate subcommittee hearing in 1950:
Certainly [the convention’s definition] doesn’t mean if I want to drive 5 Chinamen out of town, to use that invidious illustration, that I must have the intent to destroy all the 400, 000, 000 Chinese in the world or the 250, 000 within the United States. It is part of a racial group, and if it is a group of 5, a group of 10, a group of 15, and I proceed after them with guns in some community to get rid of them solely because they belong to some racial group…I think you have got a serious question. That is what bothers me.5
Senator Brien McMahon (D.–Conn.), the chairman of the first Senate subcommittee, who himself supported ratification, wanted answers, and this often resulted in a quest to pin down numbers. He asked, “Let us assume there is a group of 200, 000. Would that have to mean that you would have to murder 100, 001 before a major part would come under the definition?” Lemkin stressed that partial destruction obviously had to be “of such substantial nature that it affects the existence of the group as a group” and wrote graphically that partial destruction meant that “by cutting out the brains of a nation, the entire body becomes paralyzed.”6 In the end the McMahon subcommittee recommended including an “understanding” that the United States interpreted “in part” to mean “a substantial portion of the group concerned.” Even though this should have satisfied the senators’ need for reassurance, many ignored the proposed compromise language and continued to complain.7 Years later, when the Khmer Rouge, the Iraqi government, and the Bosnian Serbs began eradicating minority groups, those who opposed a U.S. response often ignored the genocide convention’s terms and denied genocide was under way, claiming the number of dead or the percentage of the group eliminated was too small.
The genocide convention also earned criticism for stipulating that a perpetrator could attempt to obliterate a group not only by killing its members but by causing serious bodily or mental harm, deliberately inflicting damaging conditions of life, preventing births, or forcibly removing children. But in order to constitute acts of genocide, these crimes could not be carried out in isolation. They had to be a piece of a plan to destroy all or part of the designated group. The aim of including acts besides murder was to ensure that the international community looked to—and reacted against—such “lesser” crimes as minimassacres, population transfers, and sterilization because they were evils in their own right and because they fell on a continuum that often preceded the physical elimination of a people. In criminal law an intent to commit a crime is generally hard to prove, and intent to commit genocide even harder. Only rarely would those planning a genocide record their intentions on tape or in documents. Proving an intent to exterminate an entire people would usually be impossible until the bulk of the group had already been wiped out. The convention drafters believed it would be better to act too soon rather than too late. When one group started expelling another group from its midst, as the Turks had done in 1915 and the Serbs would do in Bosnia in 1992, it could signal a larger plan of destruction.
The law’s opponents ignored the reasoning that lay behind the ban’s provisions. Instead they zeroed in on the possibility of stretching the new law’s language to apply to practices too mild to warrant interference in another state’s domestic affairs. Some suggested that U.S. ratification would license critics of the United States to investigate the eradication of Native American tribes in the nineteenth century.8 Southern senators feared that inventive lawyers might argue that segregation in the South inflicted “mental harm” and thus counted as genocide.9 Legislators warned that the convention would empower politicized rabblerousers to drag the United States or the senators themselves before an international court.
Reckoning with American brutality against native peoples was long overdue, but the convention, which was not retroactive, could