A Problem from Hell: America and the Age of Genocide. Samantha Power
The UDHR was a nonbinding, thirty-article declaration of principles of civil, political, economic, and social justice.32This aspirational set of principles was only a “date,” Lemkin said, whereas the convention, which required states to behave a certain way, was more like a “marriage.”33 He naively believed that unanimous passage of the convention meant that states intended to live up to their legal commitments. Thus, he feared respect for “his” law would be lessened by association with “her” declaration.
Yet it was when the human rights movement attempted to legalize this initial declaration of principles and turn it into a legal convention modeled on the genocide ban that Lemkin erupted.34 He simply could not believe that diplomats, drafters, and concerned citizens would attempt to make low-level rights abuses the subject of international law, which he was convinced should be reserved for the most extreme crimes, which were most likely to elude national prosecution. Slavery and genocide were appropriate international crimes; abridgement of speech and press, which were patently unenforceable, were not. His more justified and far more urgent ends had to be distinguished from the human rights crowd’s largely prosaic concerns.
In an unpublished op-ed entitled “The U.N. Is Killing Its Own Child,” Lemkin warned against those articles in the proposed human rights covenant that “encroached” upon his convention: “The same provisions apply to mass beatings in a concentration camp and to the spanking of a child by its parents. In brief, the dividing line between the crime of Genocide, which changes the course of civilization on one hand, and uncivilized behavior of individuals on the other hand, disappears.”35 If every abuse were to become a subject of international concern, Lemkin worried, states would recoil against international law and would not respond to the greatest crime of all.
Lemkin also predicted (quite accurately) that some critics of the genocide convention would use the human rights law to kill his law in a different way, arguing that there was no need for a genocide pact because the human rights law was so expansive that it covered the crime of genocide.36 Indeed, some began to claim that genocide simply constituted an egregious form of discrimination. Lemkin was understandably adamant that the destruction of groups not be absorbed under the heading of prejudice. In a 1953 memo he snapped: “Genocide implies destruction, death, annihilation, while discrimination is a regrettable denial of certain opportunities of life. To be unequal is not the same as to be dead.”37
Foreshadowing some of the turf warfare that has plagued nongovern-mental organizations since their formation, Lemkin began lobbying for the excision from the human rights law of those provisions that overlapped with his. Two clauses in particular gnawed at him: “Nobody shall be deprived of the right to life” and “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” If these were included in the human rights law, genocide convention critics would claim that genocide had already been “covered.” Lemkin urged dumbfounded U.S. officials to insist that the human rights law omit references to the right to life and the right to be free of inhuman treatment. He received a gracious letter back from Assistant Secretary of State John D. Hickerson, who observed, “Certainly it would be difficult to deny that these two rights are among the most basic of human rights generally recognized throughout the world.”38Yet Lemkin thought international law should reserve itself for the base and not busy itself with the “basic.”
As he attacked the human rights treaty and its sponsors, Lemkin found himself mouthing the same arguments as notorious human rights abusers.39 In his fury, he ignored all he had in common with his human rights rivals. René Cassin, a French Jewish lawyer who took the lead on the Human Rights Commission in drafting the Universal Declaration and who in 1968 was awarded the Nobel Prize for his efforts, had lost twenty-nine members of his family, including his sister, in Nazi concentration camps. Cassin’s response to Soviet critics who bristled at outside interference might well have been written by Lemkin. “The right of interference is here; it is here,” Cassin noted. “Why? Because we do not want a repetition of what happened in 1933, where Germany began to massacre its own nationals, and everybody…bowed, saying ‘Thou art sovereign and master in thine own house.’”40
Lemkin, Cassin, and Roosevelt also squared off against the same opponents. Senator Bricker teamed with Senator McCarthy to deride all UN instruments as vehicles of world government and socialism that would swallow U.S. sovereignty and aid in a Communist plot to rule (and internationalize) the world. The bedfellows who united in opposition to the genocide ban and the human rights law were not only fierce anti-Communists like Bricker but also devoted Communists from the Soviet Union and the Soviet bloc representing their countries at the United Nations.
But instead of seeing or seeking common ground, Lemkin chided human rights advocates for the very utopianism that his opponents ascribed to him. The draft human rights covenant naturally included a demand that signatories respect rights “without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lemkin found this laughably unrealistic: “History has tried to achieve this task through a combined travail of revolution and evolution, but never before has a philosopher or lawyer dreamed of this unique opportunity of replacing a historical process by fiat of law. In short, it is merely a description of Utopia, but Utopia belongs to fiction and poetry and not to law.”41
Back in the United States, the gatekeepers at the Senate Foreign Relations Committee quashed all prospective hearings on the genocide convention. After another wave of countries signed the convention in 1957, the New York Times again lauded Lemkin, calling him “that exceedingly patient and totally unofficial man.”42
But Lemkin’s patience was thinning and his health worsening. He took each year’s delay personally, and the stress of the extended struggle took its toll. He began to disappear from sight for long stretches, cutting himself off from his few friends. A close friend, Maxwell Cohen, said Lemkin “was very warm to those close to him, but he antagonized so many people with his insistence and his impatience.” Although Lemkin spent weekends and summers with Cohen’s family, they always referred to him as “Dr. Lemkin.” Lemkin could woo people with his Old World gentility, but he always kept them at a distance. According to Cohen, “Women were attracted to him. He was a very charming man with an extraordinary inner dignity.” But Lemkin continued to make no time for them, telling Cohen, “I can’t afford to fall in love.”43
Lemkin’s enemies and disappointments were piling up. He was nominated for the Nobel Peace Prize in 1950, 1951, 1952, 1958, and 1959.44 But journalists had stopped calling. And the “multilateral moment” where the UN and international law held promise had passed. Lemkin lived off small donations from Jewish and Eastern European émigré groups. He had begun a fourvolume history of genocide. The first volume, which he had nearly completed, would be entitled “An Introduction into the Study of Genocide” ; the second would cover genocide in antiquity; the third would focus on genocide in the Middle Ages; and the fourth would take readers through genocide in modern times. But if Lemkin saw the indispensable service to humanity such a collection would supply, American publishers foresaw only dim sales. The president of the John Day Company informed him that the company had concluded they could not “successfully sell a book about the history of genocide, whether condensed or at length.”45 Charles Pearce of Duell, Sloan and Pearce replied to his inquiry by stating, “It would not be possible for us to