By Robin Jacobson.
In the 1920s, at a law school located in present-day Lviv, Ukraine, a Polish-Jewish student and his professor argued over a startling gap in international law. The student was outraged that the law did not bar a government from murdering its inhabitants – and that there was no way to bring Turkish officials to justice for having massacred Armenians in 1915. As the story goes, the professor explained that a sovereign nation is like a farmer who owns a flock of chickens. The farmer has complete control over his chickens – to nurture or destroy them, as he chooses. “The Armenians,” snapped the student, “are not chickens!”
As time passed, the student, Raphael Lemkin, found further cause for outrage. When Nazi Germany began targeting Jews in 1933, Lemkin, then a Warsaw public prosecutor, advocated for international laws criminalizing state-sponsored persecution. Another champion for legal protection for civilians was Hersch Lauterpacht, who, like Lemkin, was a Polish Jew who attended law school in Lviv. But while Lemkin fought for protections for ethnic and religious groups, Lauterpacht believed the law should focus on protecting individuals. The two contrasting approaches are the cornerstones of the modern system of international criminal law, says Philippe Sands, human rights lawyer, English barrister, and professor of law. Sands’ vivid and compelling book, East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” (2016), interweaves the life stories of Lemkin and Lauterpacht with Sands’ own family history in the city of Lviv.
As Sands recounts, Raphael Lemkin (1900-1959) escaped Poland after the German invasion of 1939. Following a perilous journey, Lemkin arrived in the United States in 1941 and began teaching at Duke University School of Law.
Lemkin lugged from Europe large valises crammed with Nazi decrees and ordinances. Relying on these incriminating documents, Lemkin wrote a book, Axis Rule in Occupied Europe (1944), warning that the Nazis intended to extinguish the Jewish people. One chapter was titled “Genocide,” a term Lemkin invented by amalgamating the Greek word genos (tribe or race) with the Latin word cide (killing).
At the Nuremberg trials of Nazi leaders in 1945-46, the crime of “genocide” did not figure as prominently as Lemkin hoped, possibly because the Allies feared the term might someday be applied to their past treatment of Native Americans, African Americans, or British colonists. Lemkin’s moment of triumph came later, in 1948, when the United Nations unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide.
Hersch Lauterpacht (1897-1960) left Lviv in 1919, eventually becoming an influential professor of international law at Cambridge University. Lauterpacht persuaded Robert Jackson, the chief United States prosecutor at the Nuremberg trials, to charge the Nazi leaders with “crimes against humanity.” The term had been used previously to protest atrocities, but not as part of international law. Tragically, Lauterpacht learned during the Nuremberg trials (as did Lemkin) that the Nazis had murdered nearly every member of his extended Jewish family.
Nonetheless, Lauterpacht did not like Lemkin’s term, “genocide.” As Sands explains, Lauterpacht believed that focusing on the perpetrators’ intent to destroy a group would pit groups against each other, inflame prejudices, and undermine protection of individuals. Lemkin disagreed, insisting that the law needed to reflect reality; victims in mass killings are typically targeted as members of a particular group, not as individuals.
This debate continues, but both crimes, “genocide” and “crimes against humanity,” are now firmly established in international law, a tribute to Lemkin and Lauterpacht. These revolutionary thinkers upended the time-honored tenet that a government has the right of life or death over its people. Alas, atrocities persist, despite a legal mechanism for combating them.