Unofficial men, efficient civil servants: Raphael Lemkin in the history of international law

Mira L. Siegelberg

This thesis analyzes the charges of genocide and crimes against humanity in the context of the Nuremberg Einsatzgruppen trial (1947-48) and the role that each charge played in the formation of modern international criminal law. Prior to the International Military Tribunal at Nuremberg (1945-46), international law was designed to govern the laws and customs of combat between sovereign states. However, the atrocities committed by the Nazis during World War II prompted contemporary legal thinkers to consider expanding the purview of international law in order to protect the human rights of civilians. On the eve of the International Military Tribunal, Hersch Lauterpacht minted the concept crimes against humanity for use in the courtroom. The new legal phrase was used to prosecute Nazis who had committed atrocities against civilians as part of a state-sponsored campaign. Around the same time, Raphael Lemkin devised the word genocide to refer to the intent to destroy an ethnic, racial, or religious group in whole or in part. The legal basis for the main Nuremberg Trial, Control Council Law No. 10, enabled each victorious Allied country to conduct their own series of trials against Nazi war criminals. American prosecutors conducted a series of twelve additional trials between 1946-49, which are now known as the subsequent Nuremberg proceedings (SNT). The Einsatzgruppen trial was the ninth SNT where American lawyers prosecuted twenty-two high-ranking officials who oversaw the murder of Polish and Soviet Jews by way of mass shootings. In this thesis, I argue that the Einsatzgruppen trial represented the most apparent legal confrontation with the crime of genocide to date. However, the processes and politics surrounding the Nuremberg trials made the formal prosecution of genocide virtually impossible during the time that the trial was taking place. Instead, crimes against humanity was used as the principle charge during the Einsatzgruppen trial. The difficulties encountered by American lawyers at Nuremberg provide a reflection of the challenges faced by modern-day human rights lawyers in securing convictions for the charge of genocide.

With the development of international criminal law, including protection against the most severe crimes, came an interest in the life and activity of the man who was the creator of the notion of “genocide” and the main author of the UN Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948. This man was Rafał Lemkin (1900–1959), a Polish jurist, a prosecutor and later an advocate, alumnus of the Lwów school of criminal law of Juliusz Makarewicz, and lecturer of the Free Polish University in Warsaw.

The biography of Raphael Lemkin has emerged of late as a highly contested lieu de memoire in charged political debates in Europe, the United States and the Middle East about the meaning, past and present, of the Holocaust and genocide. At the same time, scholars have attempted to demythologize Lemkin by reinscribing his life into its pre-World War II Polish context. Yet thus far no one has identified the precise political activities and affiliations that shaped Lemkin’s concept of genocide. In this article, I show that Lemkin, far from being a Jewish Bundist, a Polish nationalist or an apolitical cosmopolitan, was an active member of the interwar Polish Zionist movement, from which he drew the ideas that inspired his idea of the crime of genocide. In the first part of this article, I use his published writings from the 1920s and 1930s in Hebrew, Yiddish and Polish to recover a rich Jewish political framework in which his concepts of barbarism and genocide first began to emerge. In the second section, I ask how this crucial dimension of Lemkin’s life and thought vanished from the historical record, and why it has yet to be recovered in spite of the boom in biographical scholarship. Finally, I suggest how the recovery of Lemkin’s Zionism helps to reframe the current political impasse in the historiography of Holocaust and genocide studies.

This article was downloaded by: [Princeton University] On: 20 June 2015, At: 05:53 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Journal of Genocide Research Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/cjgr20 Unofficial men, efficient civil servants: Raphael Lemkin in the history of international law Mira L. Siegelberg Published online: 02 Sep 2013. To cite this article: Mira L. Siegelberg (2013) Unofficial men, efficient civil servants: Raphael Lemkin in the history of international law, Journal of Genocide Research, 15:3, 297-316, DOI: 10.1080/14623528.2013.821224 To link to this article: http://dx.doi.org/10.1080/14623528.2013.821224 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. 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SIEGELBERG This article examines Raphael Lemkin’s campaign for the Genocide Convention in the context of other internationalist projects pursued at the UN in the postwar era. Lemkin’s papers at the American Jewish Historical Society, as well as at the New York Public Library, testify to his concern that his ambition to establish genocide as a particularly criminal act would be disrupted either by advocates of the Universal Declaration of Human Rights or by international lawyers and civil servants working at the UN Legal Commission, prioritizing the concept of crimes against humanity and the Nuremberg Judgment. While his project to create an internationally recognized law to make genocide a crime was legalistic in its implicit faith in the power of lawmaking, Lemkin cannily sought to distance the Convention from those promoting the renewal of international law in a period defined more by realist skepticism about interwar approaches. Instead, he rooted genocide in a religiously inflected moral idiom that could distance his project from those pursuing a broader agenda of international legal codification, which met with scorn especially from those journalists whom Lemkin successfully recruited to the cause of prohibiting genocide. In order to demonstrate this claim, this article first establishes that Lemkin’s concern to preserve the basic idea behind the minority protection treaties set him apart from other international jurists of the period working towards the establishment of binding legal enforcement for the protection of individual human rights. It then contextualizes Lemkin’s rivalry with the legalists by examining the effort by UN civil servants and international lawyers to revive the prewar project to expand international law, arguing that it compels a reconsideration of Lemkin’s, and the Genocide Convention’s, place in the history of international law and legal order more broadly. Introduction In Humanity’s law, Ruti Teitel’s study of the tectonic shift from a global political order based on state interest to one rooted in a legalist discourse of rights for all people, the innovations of the post World War II period in the areas of human rights, humanitarian law and international criminal law, together provide a new foundation for global politics and jurisprudence.1 From this contemporary vantage point, all the international instruments created after in the aftermath of the war, like the Universal Declaration of Human Rights and the Convention on # 2013 Taylor & Francis Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG the Prevention and Punishment of the Crime of Genocide worked, harmoniously to—eventually—produce a new language of political legitimacy based on the rights and dignity of the human person. Since the first decade after the Cold War, legal scholars and human rights practitioners have excavated the period after World War II for historical precedents to ground projects like the International Criminal Court, in the process lifting postwar arrangements like the European Convention on Human Rights from 1950 and the Genocide Convention from 1948 out of historical obscurity.2 Yet as historians have begun to page through the archival records of international organizations and the papers of Raphael Lemkin, the principal creator and publicist of the Genocide Convention, the era of ‘humanity law’s’ birth appears more fractious and divided, and less like a moment of internationalist grace. In investigating Lemkin’s writings and personal papers, many have come across evidence of Lemkin’s deep-seated anxiety that other internationalist agendas—including human rights and the development of international law—would encroach on the priority of the genocide idea.3 Over the course of his campaign to promote the idea of genocide as an international crime—defined in the Genocide Convention as the intent to destroy in whole or in part a national, racial, ethnic or religious group—Lemkin expressed his opposition to schemes either to incorporate the Convention into an international criminal code derived from the Nuremburg Judgment along with individual criminal liability for violations of the laws and customs of war, and crimes against humanity, or to subsume it under the heading of individual human rights. Some scholars have treated these challenges as evidence of Lemkin’s lonely place in the history of morality and his resolve to prevent his legal innovation from suffering dilution or obliteration by detractors.4 Understanding Lemkin, and by extension the Genocide Convention, as part of the postwar transformation of international legal order requires that we untangle these controversies and attempt a more in-depth study of the approaches and projects that Lemkin viewed either as less significant or direct rivals to the Convention. Since the interwar period, Lemkin had envisioned a place within the law of nations for acts committed against individuals as members of collectivities, which would model other internationally recognized crimes like piracy subject to universal jurisdiction.5 Between 1926 and 1929, he served as the secretary of Poland’s Court of Appeals and then worked as a public prosecutor between 1929– 34. After escaping Nazi occupied Europe, Lemkin published Axis rule in occupied Europe in 1944 before serving as an advisor on foreign affairs at the war crimes office in Washington DC and then as an assistant to the chief American prosecutor Robert Jackson in Nuremberg. His background as a criminal prosecutor and a publicist for the development of international criminal law in the interwar period allowed him to provide assistance during the preparation and proceedings of the Allied case against the Nazi leadership.6 Lemkin was famously disappointed in Nuremberg’s failure to enshrine genocide as a crime at all times— not just in wartime—and in the limits of the concept of ‘crimes against humanity’. He succeeded in promoting the idea of a distinct international agreement on genocide and, by 1947, the Secretary General of the UN invited Lemkin, along with 298 Downloaded by [Princeton University] at 05:53 20 June 2015 UNOFFICIAL MEN, EFFICIENT CIVIL SERVANTS Henri Donnedieu de Vabres, the French judge at Nuremberg and Vespasian Pella, a Romanian expert on international criminal law, to draft a Genocide Convention. Lemkin’s efforts after the initial draft first focused on the General Assembly’s adoption of the Convention, and then on securing ratification, a period characterized by conflict with the American Bar Association and the US Senate.7 Whether 1945 in fact constituted a Stunde Null in international affairs, especially in the history of human rights, humanitarianism and international law, has been a subject of interest for historians for the last few years, and the controversy surrounding the genocide idea provides a crucial point of entry into this question. According to one interpretation, Lemkin’s life and career as a lobbyist manifest the afterlife of interwar idealism in the postwar period. In this view, Lemkin is best understood as a part of the milieu of central European jurists who continued to place their faith in international legal arrangements after the war and offered an alternative to the realist approach to international politics that repudiated legal arrangements in favor of diplomacy.8 Historians have also pointed out that Lemkin advocated the international protection of groups—since the concept of genocide referred to individuals as members of collectivities—at a moment when internationalist fashion and great power politics had largely moved on from the protection of minority rights, favoring the protection of individual human rights instead. Both these interpretations in turn suggest that Lemkin held positions that were already understood as anachronisms in the postwar era: the idea of international law as a shield against power politics, and minority protection.9 His conflicts with other internationalist agendas of the postwar era, especially promoters of individual human rights, and the resistance to the Convention exhibited both by politicians and international lawyers, could be explained, therefore, through Lemkin’s sui generis commitment to international law as a means to protect group identity. However, in order to deepen our historical understanding of Lemkin, it is necessary to further contextualize Lemkin’s rivalries by closely examining the alternative internationalist projects and visions that he imagined were in contention with the Genocide Convention. Setting Lemkin in the intellectual and institutional context of UN officials who promoted either the idea of individual human rights or the renewal and expansion of international law in general reveals an additional logic to these dynamics. By studying Lemkin’s papers, but also looking beyond his archives to the personal papers of other jurists at the UN as well as the archives of the UN, a fuller picture emerges of rival perspectives on the meaning of international law in the postwar world. This article will not, then, examine the political opposition to the Genocide Convention and its wellstudied obstruction by the American Bar Association, but its controversial status for those who dedicated their careers to the advancement of international law and its supremacy within the international states system. In the politics of history and memory playing out in the postwar era, conflicts arose over the question of what internationalist methods and practices from the prewar era remained viable and which irremediably belonged to a past era. Lemkin’s efforts to distinguish the Genocide Convention from other legalist 299 Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG projects indicates that we can begin to locate him within a broader field of postwar contestation over the history and future of legal internationalism rather than understanding his antipathy to other agendas at the United Nations only in terms of his anachronistic allegiance to minority protection. The idea that the postwar era was a high point for international law has undergone much revision by historians who have shown that the legalist vision of international affairs was widely perceived as out of date by 1945.10 As early as 1961, the political theorist Judith Shklar observed that the ‘realist’ perspective on international relations was largely composed of former legalists who had succeeded after the war in putting legalism—or the idea that neutral third party adjudicators could replace politics—on the defensive.11 Recent work on the history of realism in international relations has shown it to be a more varied doctrine with more complicated ties to the history of international law in this period.12 Yet the rule-skepticism and insistence upon the political nature of international law in the writings of Hans Morgenthau, Georg Schwarzenberger, John Herz and other founders of IR realism posed a clear challenge to postwar projects intent on expanding the role of international law in regulating international affairs. While Lemkin was hardly a ‘realist’ in Shklar’s sense of the term, the clash between his own single-minded pursuit of a law criminalizing genocide and the broader aspirations among other jurists working at the UN to expand the role of international law more generally, places him more in line with the critics of legalism. His campaign, moreover, suited the improvisational model favored by American journalists skeptical of the formal committee meetings at the UN where lawyers and international civil servants met to discuss the expansion of international law that seemed to recall the stodginess of the League of Nations. In a twist, since Lemkin was critical of individual human rights lobbyists, he anticipated the NGO lobbying approach that would come to define the human rights movement in a later decade.13 Rival languages of humanitarianism Lemkin’s readiness to identify enemies and to attribute malicious intent to other actors active in the internationalist scene is a striking feature of his correspondence during the period of his lobby for the Genocide Convention. John Humphrey, the first director of the UN Division of Human Rights, characterized Raphael Lemkin as a ‘very difficult man, who looked for enemies under every bench’.14 Throughout his correspondence with friend and allies from 1946 through the mid 1950s Lemkin named various blocs of opposition to the Genocide Convention, including politicians, international lawyers and individual human rights advocates. Even after the UN General Assembly adopted the Universal Declaration in December 1948, Lemkin feared that political opponents like the British delegation would neutralize the core value of the Genocide Convention by dividing it between the UN project to codify the Nuremberg principles into international law or in the plan to produce an international covenant on human rights.15 Undoubtedly, a key context for Lemkin’s rivalry with other jurists of the period is that they embraced the new rhetoric of individual human rights, while Lemkin 300 Downloaded by [Princeton University] at 05:53 20 June 2015 UNOFFICIAL MEN, EFFICIENT CIVIL SERVANTS remained committed to the model of group protection. One illuminating way that historians have begun to characterize the distinction between interwar internationalism and postwar internationalism is by highlighting the shift from international protection for minorities to international protection for individual human rights. Rather than dismiss Lemkin’s anxieties as mere paranoia, understanding his role in the postwar era in relation to the wider cultural and political shift toward individual human rights provides an explanatory context for his perceived competition with other jurists. Lemkin’s emphasis on protecting the existence, and cultural integrity, of particular groups appeared, according to this view, out of step at a moment when the project of protecting the civil rights of national minorities in central Europe under the auspices of the League of Nations was diagnosed as a failure and political leaders and international jurists emphasized the rights of individuals.16 As Mark Mazower has shown, the Allied powers effectively let the minority protection system die out and embraced the language of individual human rights, which did not entail the same level of legal obligation and allowed for the instauration of the nation-state as the central unit of international order.17 If we momentarily leave Lemkin’s commitment to minority protection aside, however, his professional and intellectual trajectory mirrors that of other central European jurists, mainly of Jewish descent, who participated in internationalist projects in the interwar period and continued to promote international law and international institutions after World War II. Ana Filipa Vrdoljak, for instance, has shown that Lemkin’s professional and intellectual path was quite similar to that of Hersch Lauterpacht, the British émigré jurist perhaps most associated with the shift towards human rights: both remained unwavering in promoting the role of law in international society and were influenced by their experiences as Jewish subjects of multinational empires.18 Lemkin’s complaints against the lobbyists for international individual human rights seem to accord closely with the position articulated by other international lawyers fearful that a Universal Declaration would have no binding effect. He and Lauterpacht indeed shared the fear that a mere declaration of human rights would be an empty statement with no legal enforcement. Even in the early stages of planning a Universal Declaration, committee members advocated asserting principles that would educate and inspire people to protect individual human rights rather than drafting legal measures that could not capture public attention. In 1946, for example, a letter sent to Eleanor Roosevelt from the drafting committee of the Universal Declaration insisted that law was an insufficient means to protecting individual human rights. Rights, the author asserted, ‘cannot be guaranteed solely by legislation any more than a theoretically perfect democratic constitution in some countries has been able to ensure government by the people’. The author argued, ‘the best guarantee of human rights lies in an informed and alert public opinion’.19 The preference for ‘public opinion’ over itemized laws or principles was a direct concern for the jurists and Lemkin’s criticism of the individual human rights agenda was in part the result of its emphasis on shaping public opinion through persuasion rather than legal enforcement.20 Lauterpacht also feared that the promise of the UN Charter to make the protection of individual 301 Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG human rights a part of international law would end in a legally non-binding declaration, and in 1948 expressed concern at the International Law Association’s meeting that the legal edge of an international bill of rights would be lost in an aspiration declaration of principle.21 Nonetheless, Lemkin’s ideological commitment to the civilizational role of cultural groups sets him apart from Lauterpacht, who promoted the idea of the individual as the subject of international legal order above all else.22 It also conditioned the resistance Lemkin faced from other international jurists who were more inclined to support the new vogue for individual human rights over minority protection. In his autobiography, Lemkin wrote that he became interested in international criminal law in the first place because he felt it could be applied to his idea about protecting minorities.23 By contrast, Lauterpacht argued that the UN charter was superior to the minorities treaties both because it was not limited to a particular group of states and because it was not a limited category of rights.24 Lemkin’s interwar work promoting the concept of ‘vandalism’, or violence targeting specific groups manifested his early interest in using the field of international criminal law to enshrine groups as the basis for culture and civilization. In his 1933 proposal at the Madrid conference on international criminal law Lemkin introduced ‘attacks carried out against an individual as a member of collectivity’ as a new principle for international legal scholars to codify.25 After the drafting committee presented the Universal Declaration in 1948 to public view, Lemkin prioritized the urgency of the Genocide Convention over the aspirational, and non-exigent, list of rights. Lemkin wrote to Major John Ennals, the head of the World Federation of UN Associations, that the ‘the mass destruction of human life is just more important than denial of education or employment’.26 The strongest evidence, finally, for the distance between Lemkin’s outlook and that of his jurist colleagues is the attitude of his former interwar allies towards the concept of cultural genocide. The two jurists chosen to draft the Genocide Convention with Lemkin had worked together in the interwar period on developing an international system of criminal law. However, unlike Lemkin, de Vabres and Pella seem to have endorsed the broader repudiation of minority protection. Lemkin’s clash with de Vabres and Pella on the inclusion of cultural genocide in the draft underscores their unwillingness to promote the protection of groups qua groups.27 Both were explicit in articulating their logic. They argued, ‘cultural genocide represented an undue extension of the notion of genocide and amounted to reconstituting the former protection of minorities under cover of the term genocide’.28 Lemkin thus shared the legalist anxiety that declarations of principle would displace legal rules. However, he seemed to fundamentally part ways with others in the professional community of international legal scholars over the importance of individual human rights relative to the criminalization of violence against particular groups. Professional civil servants In order to understand Lemkin’s place in the history of international law, it will be necessary, however, to look beyond his anomalous adherence to the paradigm of 302 Downloaded by [Princeton University] at 05:53 20 June 2015 UNOFFICIAL MEN, EFFICIENT CIVIL SERVANTS group protection. While Lemkin’s loyalty to the protection of group identity sets him apart from other jurists, including the other drafters of the Genocide Convention, it does not exhaust the meaning of his disputes. It might seem, given that both Lemkin and Lauterpacht argued for an expanded role for international law, that Lemkin shared the basic legalist assumption that legal instruments, and not declarations, were the only barriers against future forms of barbarity. This explanation, however, cannot account for Lemkin’s disdain both for advocates of individual human rights who sought to subsume genocide into the broader human rights umbrella and for the bureaucratic formalism of the UN that threatened to thwart his vision of genocide’s elevated place in the postwar moral landscape. This section strives to set Lemkin’s animosity towards the other international legal projects in a broader historical and professional context, and suggests that it is not sufficient to explain Lemkin’s behavior as one example of international jurists continuing the legalistic agenda of the League era.29 After the drafting of the Genocide Convention in 1947, Lemkin told Gertrude Samuels, a writer for the New York Times, that there were two main forms of opposition to the Genocide Convention. The first was political, embodied by resistance from British and Russian delegates to creating a legal basis for investigating the destruction of populations. The second was, as Lemkin put it, ‘legalistic’. He told Samuels that a ‘small group of influential lawyers’ sought to mix the genocide issue with ‘larger projects of the codification of international law’. These lawyers, he continued, ‘want jobs, honors, and mandarin ceremonies to go on for decades in international law committees’.30 In his autobiography, Lemkin identified his group of opponents as the members of the UN International Law Commission, who silently undermined his campaign. ‘Since I was constantly in the chambers of the legal committee’, he wrote, ‘they would smile with embarrassment when I spoke to them and turn their eyes away’.31 Once we begin to examine the ‘larger projects’ that Lemkin referenced in his letter to Samuels, it appears that Lemkin sought to distinguish his own project from that of the professionalized international lawyers and civil servants employed by international institutions after the war. Despite the proliferation of instruments that together can now be loosely defined as ‘humanity law’, a closer examination of the postwar era suggests that it was not a moment of internationalist grace before Cold War politics pushed the expansion of international law and human rights off the main political stage. Hersch Lauterpacht described 1948, the year that both the Genocide Convention and the Universal Declaration were adopted, as a moment of transition characterized by a ‘pessimistic temper’, which led to the tendency to ignore the binding character of the provisions of the UN Charter in the matter of individual human rights.32 As we have already seen, two starkly different positions on the role of law in reshaping the moral landscape of the postwar order were available at the time of Lemkin’s lobby.33 The attack on international legalism was carried out on two fronts: some supporters of the Universal Declaration prized public opinion over legal instruments, while émigré jurists in Britain and the United States who had turned against international law as a substitute for power politics kept up a fierce campaign to publicize the 303 Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG limitations of the legalist approach to international relations. George Scharzenberger, an international lawyer born and trained in Germany, sent the UN International Law Commission a copy of his article, ‘The impact of the east –west rift on international law’ from his teaching post at University College in London. The article advocated a sociological approach to international law, in which the study of international law was primarily a tool for analyzing power relations rather than a system for taming states.34 Within the camp that still considered binding international agreements and legal precedents the path to global reconstruction, however, Lemkin sought to distinguish himself, and the Genocide Convention, from the jurists committed to the progressive development of international legal order and to their professional identification with this cause. Lemkin’s attitude toward the International Military Tribunal at Nuremberg provides the first indication of the disparity between his approach to international legal order and that of the jurists working at the UN and other international organizations. By definitively rejecting the possibility of drawing out a legal principle on genocide from the Nuremberg trials and focusing on the failure to identify the intent to destroy a group in wartime or peacetime as a failure requiring rectification, Lemkin set himself apart from the other scholars who sought to build on Nuremberg’s groundwork.35 Where Lemkin experienced disappointment with Nuremberg for failing to clearly identify genocide as a crime unrelated to the crime of aggression or crimes of war, others saw an opening for pushing further international legal developments that would require the particular expertise of scholars trained in international law. For legal scholars involved in developing the legal architecture for human rights as well as international humanitarian law more generally, excitement about the trials in part stemmed from the possibility of extracting new legal principles from the opinions handed down by the judges at Nuremberg. Egon Schwelb, the deputy director of the UN human rights commission who had been a practicing lawyer and member of the Social Democrat party in Prague, was one of the ‘mandarin’ international civil servants that Lemkin viewed as a threat to the Genocide Convention. Before the General Assembly voted on the Convention, Schwelb had told Lemkin that it would be better to develop the legal concept of crimes against humanity brought against the Nazi war criminals at Nuremberg rather than burden the international community with a redundant instrument. ‘It will be necessary’, he told Lemkin, ‘to unite the two rivers flowing under two different names, namely “genocide” and “crimes against humanity” into one broad and solid bed’.36 According to Schwelb, the law of genocide had already been applied when the allies executed Julius Streicher, the editor of Der Stürmer, for crimes against humanity. The discussions on genocide in the General Assembly, Schwelb told a colleague, ‘amounted to a retrograde step compared with the law as laid by the Nuremberg charter’.37 After the trials, there was an immediate effort to expand the concept of crimes against humanity.38 Crimes against humanity would be the starting point for a process of legal elaboration and part of the move toward ‘world law’.39 In his landmark essay in the British Yearbook of International Law on crimes against humanity from 1946, Schwelb argued that the idea of crimes against humanity 304 Downloaded by [Princeton University] at 05:53 20 June 2015 UNOFFICIAL MEN, EFFICIENT CIVIL SERVANTS had little bearing on the principle of ensuring minimum standards of human rights. Nevertheless, Schwelb presented Nuremberg as fundamentally progressive because it provided a path towards the development of crimes against humanity beyond its original narrow remit. The work undertaken by legal scholars to extract and collate the laws emerging from the postwar war crimes trials constituted, Schwelb wrote, ‘the development of a new science—the science of the law concerning crimes against humanity of which I am one of the charter members’.40 Thus, whereas Lemkin rejected the idea that a law defining and banning genocide could emerge from the Nuremberg trials, others saw the precedents set forth during the trials as a roadmap for new developments in the law of nations that would take ‘humanity’ as its central subject.41 Benjamin Ferencz, an American prosecutor at Nuremberg originally from Romania, told Eleanor Roosevelt in December 1947 that the prosecutors believed that the basic presumption behind prosecution was that the crimes in question represented a violation of fundamental human rights for all people in all places. He added, ‘it has been our desire, in this case and other cases, to establish a judicial precedent for the safeguarding of these rights through international law’.42 In other words, prosecutors like Ferencz hoped that guilty verdicts would entrench the principles behind individual human rights, particularly the idea that individuals could be held liable for acts within their own states. Egon Schwelb, meanwhile, sought to ground the novelty of categories like crimes against humanity by rooting it in wider assertions of principle, and to build a body of human rights law out of the unspooled threads of judicial decision and opinion expressed at the International Military Tribunal.43 Schwelb and Humphrey hired a private contractor named John Fried in March 1948 to draft a study on the relevance of the postwar trials for the sphere of human rights and particularly the protection of individual human rights under international criminal law.44 Like Lemkin, Fried was also a Jewish refugee and had served as a journeyman expert on matters of international law advising judges at various postwar tribunals.45 However, unlike Lemkin, Fried was tightly connected both personally and institutionally to the core émigré jurists promoting the idea of international law as a barrier against power politics and with the creation of a professionalized international civil service. After immigrating to the US from Vienna, Fried had published a well-received book The guilt of the German army in 1942. In addition to letters of reference from the famed Viennese jurist Hans Kelsen (who happened to be his uncle and intellectual mentor), Fried was in close contact with his brother-in-law, Leo Gross, the editor of the American Journal of International Law. His first job after the war was as a legal advisor to the US Nuremberg Military Tribunals. He had also worked as a member of the International Labor Organization’s international staff in Montreal and would continue working towards attaining a high-level position as a legal advisor at the International Refugee Organization and the UN through the 1960s.46 Unlike Lemkin, Fried was thrilled by the various developments and innovations emerging from the trials that would all contribute to the growth of international law, including the laws of war and international criminal trials.47 Outlawing genocide, according to this view, was 305 Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG only one possible innovation to emerge from Nuremberg and could be folded into the prosecutions. Fried even wrote to Lemkin in 1947, telling him to take heart that the case against the Einsatzgruppen pursued beginning in late 1947 at the Nuremberg “successor trials” involved aspects of genocide that had not yet been widely discussed.48 Concern about recapitulating the ineffective internationalist strategies of the League era led to historicist debate after World War II over which aspects of international legal order remained relevant in the postwar world and which had become relics of past eras. The prosecution and many of the attending legal experts at Nuremberg preferred the war crimes charges because they rooted the trials in what seemed to be the sounder precedent of the Hague Conventions from 1899 and 1907. As part of his research, Fried wrote to state officials inquiring into their own postwar war crimes trials in an effort to discern whether the various national war crimes trials shared an underlying sense of which violations of human rights were punishable.49 When Fried asked Shabtai Rosenne, the legal advisor to the Israeli government, to describe the Israeli perspective on the war crimes trials for his global study, Rosenne replied by distinguishing between genocide and regular war crimes charges—genocide, he stated, represented an innovative way forward, while war crimes were part of the past.50 Rosenne’s reaction underscores the impulse, which Lemkin shared, to separate Genocide from war crimes and to cast the older legal tradition as irredeemably out of date. A closer examination of Lemkin’s notes on the Genocide Convention indicates that his antipathy to Nuremburg was not only that it remained limited to wartime crimes rather than to acts perpetrated by governments against their own populations, but also that it was linked to a tradition of international criminal law that he wished to distinguish from the Genocide Convention. In his draft preamble to the Genocide Convention, Lemkin explained that Nuremberg could not serve as a precedent because it dealt with the laws of war and with countries whose sovereignty was suspended, whereas he sought to create a law applicable to sovereign nations. He wrote: ‘in drafting the Genocide Convention we are precluded from going into the intricacies of the Nuremberg Law. I call it intricacies because as a law of war, it is correlated with the Hague Convention. . . . We should not put genocide in the straightjacket of juridical classification’.51 It is telling, then, that even the term ‘crimes against humanity’ was not a wholly new concept but instead built on the legacy of a famous note submitted by France, Britain, and Russia to the Sublime Porte condemning Turkish atrocities against the Armenian population in 1915. Hersch Lauterpacht suggested it to Hartley Shawcross, the chief British prosecutor, thereby re-introducing the concept for the Nuremberg trials.52 Lemkin, in contrast, coined a new word, ‘genocide’, to describe a phenomenon with an ancient history but not yet part of international criminal law.53 The term might, in Lemkin’s view, have signified an ancient phenomenon, but the coinage and the work to institute it as an international crime were innovative and novel. Lemkin’s fear that the Genocide Convention would be swallowed up by the concept of crimes against humanity did not come to pass, and the Convention 306 Downloaded by [Princeton University] at 05:53 20 June 2015 UNOFFICIAL MEN, EFFICIENT CIVIL SERVANTS passed unanimously in the General Assembly in December 1948. However, once this phase of the campaign was complete Lemkin anticipated that the professional civil servants of the UN would try to co-opt the cause for their own purposes and inhibit ratification. Lemkin reported to John Ennals in 1948 that the next major challenge to face the Convention would come from the international lawyers who would ‘like to use this dramatic and intellectually attractive issue in their work’.54 After the war crimes trials, the International Law Commission, an expert body subordinate to the UN General Assembly, was charged with the codification and progressive development of international law. This involved formulating the Nuremberg principles, preparing a Draft Code of Offenses Against Peace and Security, and the creation of a permanent international criminal court.55 Later, in his battle to achieve US ratification, Lemkin wrote to a friend that the danger to the Genocide Convention came from two distinct parties: the American Bar Association fearful of encroaching on American sovereignty and from ‘vested interests in the United Nations projects’.56 Ivan Kerno, the assistant UN secretary general in charge of the UN legal department from 1946 to 1952 could plausibly have been one of the ‘legalistic international lawyers’ that Lemkin mentioned in his letter to Gertrude Samuels listing enemies of the Convention. Kerno had been a member of the League of Nations Secretariat from 1928– 34 as well as a Czech diplomat who supported the end to minority rights in Czechoslovakia.57 Even if Kerno distanced himself from minority rights and also adopted the language of human rights favored in the postwar period, he remained attached to the broader ideals that international lawyers had professed since the establishment of a formal profession in 1873.58 As the head of the UN Legal Department, Kerno was an integral member of the project to renew international law and to rehabilitate its reputation after so many adherents turned against the cause in the 1930s. International lawyers who continued to argue that the new order should be based on formal rules rather than power politics faced the battered reputation of the League and its genteel rituals.59 The program to develop and codify international law at the UN was understood, moreover, as a continuation of the League of Nation’s project to promote progress in the field and to organize codification conferences similar to the infamously unsuccessful Third Hague Convention in 1930.60 By the 1930s, critics of The Hague Codification Conference characterized it as luxuriant bourgeois events of little consequence. Edwin Borchard, a well known American international legal scholar, explained that he did not support the third Codification Conference because he ‘lacked faith in attempts to codify international law between dinners and official receptions, or as M. Briand might have said, between the cheese and the pears.’61 What distinguishes the ‘influential lawyers’ who Lemkin identified as his adversaries, then, was their commitment to legalism in international relations, the general renewing of international law, and the expansion of its professional apparatus. In his keynote address at the International Law Association dinner in 1947, Kerno spoke of returning to the project of expanding the role of international law and to reassure those whose faith in this long-term professional project was 307 Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG shaken. He stated, ‘many students of international law, both here and abroad, were somewhat skeptical regarding the usefulness of once more untracking the task of codification and development in the face of disappointing results of the first effort at The Hague in 1930’. But, he continued, as the UN became more firmly established, it became clear that the young organizations could take up this task once again in order to establish the rule of law in international relations.62 International legal scholars who had not lost faith in the project to build an effective system of international law also emphasized the importance of continuing to expand the field by building on court decisions and the steady process of codification.63 Kerno stressed the difference between codification projects in the League era and at the UN: now it was not a matter of using codification as the primary means of developing international law. Instead, new codification efforts would concentrate on moving the law forward, rather than remaining hamstrung by existing practice.64 In the UN newsletter from July 1949, Kerno wrote that international law must move beyond the specialists: ‘modern international law has increasing points of contact with individuals, for example in the promotion of universal respect for human rights’.65 The fact that Kerno highlighted modern international law’s connection to the promotion of universal individual human rights only highlights its embattled status. Even the vision of scientific progress underpinning the project to renew international law was under duress and served as a rallying cry for the keepers of the faith.66 When Vespasian Pella sent Kerno an article on international penal law, he added a handwritten note urging Kerno to take courage that scientific progress was always first received with suspicion, and that the science of the law would soon achieve the respect now granted to other scientific domains. Pella wrote, ‘the beginning of all scientific progress. . . [has] not been exempt from critiques, derision, sarcasm, and it has fallen to scholars of courage, of perseverance, and audacity to believe in the miracles accomplished by science. It is the same in matters legal and political’.67 At the meeting of the American Society of International Law in 1949, Pella and Lemkin clashed outright over the question of whether genocide was part of the many projects undertaken at the UN that together sought to combine the international protection of individual human rights with international peace, or remained a distinct moral and legal matter.68 Pella cited genocide as just one part of a larger project to expand the science of international law through more international agreements Lemkin also disagreed with his co-drafters on the implementation of an international criminal court. De Vabres and Pella envisioned an international court complementary to national judicial systems that would be activated whenever effective prosecution by national courts failed. Lemkin meanwhile argued that the international court should take action only in the most serious cases and that the establishment of a permanent court with general jurisdiction was in any case premature. The danger, according to Lemkin, was that the complexity of procedure would leave the offenders unpunished and perhaps also feared that an international criminal court would face the same opposition faced by groups such as the Association Internationale de Droit Penal when they tried to create such a court through the League in the 1920s and 1930s.69 308 UNOFFICIAL MEN, EFFICIENT CIVIL SERVANTS In Lemkin’s efforts to distance the prevention and punishment of genocide from other international projects in the postwar era, he portrayed them as overly complex and byzantine, fundamentally lacking the moral verve and forward vision of his own lobby. Downloaded by [Princeton University] at 05:53 20 June 2015 An unofficial man Reading Lemkin’s statements about his erstwhile legalist adversaries against the background of their efforts to promote the progressive development of international law provides an unexpected clue as to why Lemkin titled his autobiography, ‘Totally unofficial’. Lemkin’s autobiography is an invaluable document for clarifying how he sought to publicize his origins and his mission. The nickname originated with a UN correspondent, John Hohenberg who referred to Lemkin as the ‘totally unofficial man’, since he served as a special mascot of the press section even after the professional diplomats wrote him off.70 In light of Lemkin’s situation as an outsider to the community legal scholars involved in the reconstruction of international law after the war, his appropriation of the moniker betrays a deeper significance. Though Lemkin’s ultimate goal was the creation of a law that made genocide a crime, his method for creating international law was decidedly and self-consciously outside the realm of committee meetings, codification, and expert analysis. Though Kerno and other jurists promoting codification were under siege by the realist critics of legalism, they remained the establishment at international organizations and in academic departments.71 Thus, even if his commitment to enshrining groups as objects of international protection remained, in the eyes of fellow jurists, fatally tied to the system of minority protection, Lemkin sought to disarticulate his own pet project from an internationalist agenda that in the postwar era could also be subject to the charge of anachronism. The project to progressively develop and codify international law was, as we have seen, not uncontroversial in the postwar era and remained linked to the longer history of international legal codification both conceptually and in terms of personnel. The journalists that Lemkin recruited to support the Genocide Convention expressed antipathy to the bureaucratic methods and dry legalism of the League era. Lemkin, for them, embodied the looser methods of persuasion and publicity combined with resolute moralism that the American journalists prized over the stodgy ‘European’ style committee meetings that they claimed contributed to the death of the League. He found a close ally in the New York Times writer Gertrude Samuels who had been writing about the emergence of a formalized international civil service since 1946. In a derisive piece on David Owen, a disgraced British citizen who sought to build up the international civil service, Samuels wrote that Owen was singularly committed to creating an internationalized service in which ‘there can only be loyalty to the organization’.72 Samuels also wrote an op-ed advocating the Genocide Treaty, in which she contrasted the broad moral issues presented by the Convention with the ‘perfumed coffin’ committees where legal experts ‘argued minor points, neglecting moral issues’.73 Lemkin in turn referred to this article when he wrote to Samuels 309 Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG about the lawyers who sought to mix the genocide issue with the projects on the codification of international law in order to prolong professional support and employment.74 As a ‘totally unofficial man’ unfettered by the bureaucratic politics of the UN or from the professional agenda of international lawyers, Lemkin presented the law he sought to build through the Genocide Convention as a feature of his moral crusade, rather than an outgrowth of the ‘science of law’. Lemkin issued a press release after the final ratification of the Genocide Convention thanking journalists in particular, who ‘for the first time in this century played such an important part in producing international law’.75 In his autobiography, Lemkin referred to the UN headquarters in Geneva, which had previous housed the League of Nations, as ‘a cultured cemetery of a dead world’. He even retrospectively placed himself in opposition to the ‘lawyers’ of the interwar period who were skeptical of his 1933 proposal to make the destruction of national or religious groups an international crime.76 Those employed as civil servants at the UN meanwhile embraced their part in the UN bureaucracy or in that of other international organizations. Manley Hudson, a prominent international legal scholar involved in the planning of Hague Codification Conference in the 1920s and the UN special rapporteur on the codification of nationality law in the 1950s, referred admiringly to Ivan Kerno as a ‘shining model of the high minded and efficient international civil servant’.77 Paul Weis, an expert on refugees and a leading member of the International Refugee Organization, celebrated Egon Schwelb’s contributions to the field of international law and human rights by emphasizing his professional identity as an international civil servant part of the ‘silent service’ that played a crucial role behind the scenes in international proceedings.78 Acquiring the support of statesmen was one of Lemkin’s first lines of defense against the efforts by the legalists to incorporate the Genocide Convention into their codification plans. In his autobiography, Lemkin projected an image of himself as a lone crusader setting out to convince politicians and statesmen of the worthiness of his cause.79 He claimed to circumvent the legalist sabotage by approaching friends in foreign offices who could instruct their delegations to support the Genocide Convention. ‘Certainly’, he wrote, ‘the opposition would not talk with the foreign offices’.80 James Rosenberg, the chairman of the Human Rights Committee of the National Conference of Christians and Jews, told the British under-secretary of state in response to the plan to refer the Genocide Convention to the International Legal Commission, ‘this is not a job for lawyers and I speak as one. It is a task for statesmen. Not lawyers but statesmen wrote Magna Carta and the United States Constitution’.81 Lemkin thus tried to mobilize what would later be called ‘global civil society’, as well as the support of statesmen and professional politicians, in order to detach genocide from the culture of legal codification and expertise. The author Pearl Buck was one of Lemkin’s celebrity supporters and sent him a draft manifesto in support of the Convention that emphasized global enrichment through cultural diversity.82 Lemkin urged John Ennals to circulate statements by NGO religious organizations to the Economic and Social Council. Among the civic organizations that supported the genocide cause, Lemkin singled out the religious groups 310 Downloaded by [Princeton University] at 05:53 20 June 2015 UNOFFICIAL MEN, EFFICIENT CIVIL SERVANTS ‘because of their high moral sensitivity and the feeling that religion in these cruel times requires strong protection by international law’.83 John Cooper, the author of the most comprehensive study of Lemkin’s lobby, argues that the Genocide Convention should be understood as part of the tradition of transnational religious humanitarianism.84 As Anson Rabinbach notes, ‘Totally unofficial’ provided a ‘Judeo-Christian’ provenance for the concept of genocide.85 The intellectual and professional context that I have tried to reconstruct indicates that Lemkin’s linkage of the genocide idea with the spiritual fate of mankind was at least partly designed to make it appear less threatening to US sovereignty by distancing it from other international legal projects. Support from religious figures could, as Lemkin explained to Rosenberg, persuade key figures like John Foster Dulles, then a Republican senator, to support ratification.86 For all his shrewdness as a publicist, however, Lemkin’s strategy was ultimately schizophrenic. He tried to steer publicity for the Genocide Convention between the Scylla of legal professionalization and the Charybdis of the Universal Declaration and its airy aspirations. He pitted the public opinion of NGOs against the legalists, but also presented the Genocide Convention as a legal cudgel against the educational aspirations of the Universal Declaration. Lemkin thus presented the Convention as a more palatable hybrid—an instrument rooted in the idea that international treaties mattered and that individuals could be made responsible for acts defined internationally as crimes, but disconnected from the broader endeavor to strengthen world law in general. Conclusion If, as Martti Koskenniemi suggests, the history of international law should be written as a series of polemical confrontations in which law is an aspect of political struggle, than perhaps we now have a clearer sense of where to begin to situate Lemkin within the postwar epoch.87 Reading Lemkin’s papers in the context of other émigré legal scholars who found ready employment in international institutions or who participated in what Lemkin called the ‘United Nations projects’, highlights Lemkin’s ambivalent relationship to legal internationalism. The intention here, then, is not to displace the important interpretive frame of individual versus group rights as an overarching explanation for resistance to Lemkin’s campaign, but to expand the meaning of Lemkin’s rivalries in order to shed light on a moment in the history of international law. It may seem parsimonious to draw these kinds of historical distinctions, but if we want to understand how Lemkin understood himself, and where he fits into the group of mostly European émigré legal scholars that together created the implements and technical tools for the eventual consolidation of ‘humanity’s law’, than we must be open to the distinctions they themselves drew. Undoubtedly, there were deeper intellectual rifts between Lemkin and the professionalized and institutionally ensconced international lawyers of the postwar era. While Lemkin did share Lauterpacht’s faith that international conventions or covenants could make a difference, his model of global security was based 311 Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG on the respect for plurality and human difference rather than the prioritization of supranational law and institutions over sovereign states.88 Lemkin was more concerned with the history of violence against minorities rather than interstate rivalry. For this crucial reason, locating him within the tradition of European critique of empire makes more sense than trying to historicize him within the history of international law as a professional identity and practice.89 Lemkin’s conception of international law and its history was indebted, as Andrew Fitzmaurice notes, to the tradition of ‘humanitarian feelings’ in international law in the context of colonial critique.90 Though Lemkin’s outlook may have embodied a particular emphasis on the cultural worth of groups out of fashion in internationalist circles, his methodology anticipated the future of human rights as a social movement, which emphasized publicity and the emotional force of moral conviction. Perry Bechky’s examination of the rhetorical power of the term ‘genocide’ demonstrates Lemkin’s canny use of language to challenge the inviolability of the sovereign state in the postwar era.91 As I have tried to argue, however, not all attacks on sovereign prerogative should be analytically grouped together. Lemkin deployed some of the same criticisms of the legalist project that made international legal codification and judicialization so unpopular as a method of global reconstruction. As much as he seemed to embody fading trends from interwar internationalism, Lemkin cast his adversaries as throwbacks to an earlier era, drawing from the broader critique of legalism and the creation of a distinct class of international civil servants to strengthen his own position. More rigorous historical inquiry into Lemkin and his role as a publicist for the genocide idea in the postwar period thus illuminates the embattled context out of which the institutional foundations for ‘humanity law’ first emerged, and Lemkin’s active participation in the postwar movement to define the past and future of international legal order. Acknowledgements Many thanks to Dirk Moses and Donna Frieze for their insights, suggestions and support, as well as to the anonymous readers for their invaluable recommendations. Thanks to Mark Mazower, who first encouraged me to examine Lemkin’s place in postwar history, and to Samuel Moyn for reading a draft of this paper. I am also grateful to David Armitage for many helpful conversations. Notes and References 1 Ruti Teitel, Humanity’s law (New York: Oxford University Press, 2011). 2 Richard Overy, ‘The Nuremberg trials: international law in the making’, in Geoffrey Wawro and Philippe Sands (eds.), From Nuremberg to The Hague: the future of international criminal justice (Cambridge: Cambridge University Press, 2003), pp. 1 –30. 3 Samantha Powers should be credited with reviving interest in Lemkin’s biography but in the years since the publication of ‘A problem from hell’ scholars have sought to examine Lemkin’s significance more critically and historically. Samantha Powers, ‘A problem from hell’: America and the age of genocide (New York: Basic Books, 2002). For the next generation of scholarship, see Daniel Marc Segesser and Myriam Gessler, ‘Raphael Lemkin and the international debate on the punishment of war crimes (1919– 1948)’, 312 UNOFFICIAL MEN, EFFICIENT CIVIL SERVANTS 4 5 6 Downloaded by [Princeton University] at 05:53 20 June 2015 7 8 9 10 11 12 13 14 15 16 17 18 19 Journal of Genocide Research, Vol. 7. No. 4, 2005, pp. 453– 468; Anson Rabinbach, ‘The challenge of the unprecedented: Raphael Lemkin and the concept of genocide’, Simon Dubnow Institute Yearbook, Vol. 4, 2005, pp. 397 –420; A. Dirk Moses, ‘Raphael Lemkin, culture, and the concept of genocide’, in Donald Bloxham and A. Dirk Moses (eds.), The Oxford handbook of genocide studies (Oxford: Oxford University Press, 2010), pp. 19–42; Ana Filipa Vrdoljak, ‘Human rights and genocide: the work of Lauterpacht and Lemkin in modern international law’, European Journal of International Law, Vol. 20, No. 4, 2010, pp. 1184– 1186. John Cooper, Raphael Lemkin and the struggle for the genocide convention (Houndmills: Palgrave Macmillan, 2008), p. 229. Moses, ‘Raphael Lemkin’, pp. 30–31. Michael R. Marrus, ‘A Jewish lobby at Nuremberg: Jacob Robinson, and the Institute of Jewish Affairs, 1945– 1946’, Cardozo Law Review, Vol. 27, No. 4, 2006, pp. 1651– 1665. For this story in minute detail see Cooper, Raphael Lemkin, pp. 173– 209. On Lemkin’s faith in the law, see Powers, ‘A problem from hell’, p. 55. For the political tradition of realism and its postwar history, see Duncan Bell (ed.), Political thought and international relations: variations on a realist theme (Oxford: Oxford University Press, 2008); Nicholas Guilhot (ed.), The invention of international relations theory; realism, the Rockefeller Foundation, and the 1954 conference on theory (New York: Columbia University Press, 2011). On the artificial division between ‘international law’ and ‘international relations’, see Renee Jeffery, ‘Hersch Lauterpacht, the realist challenge and the “Grotian tradition” in 20th century international relations’, European Journal of International Relations, Vol. 12, No. 2, 2006, pp. 223–250. Mark Mazower, No enchanted palace: the end of empire and the ideological origins of the United Nations (Princeton: Princeton University Press, 2009), p. 127; Mira Siegelberg, ‘Contending with the ghosts of the past: Raphael Lemkin and the origins of the genocide convention’, Columbia Undergraduate Journal of History, Vol. 1, No. 1, 2006, pp. 20– 48. On the perceived breakdown of international society, see Mark Mazower, ‘An international civilization? Empire, internationalism, and the crisis of the mid-twentieth century’, International Affairs, Vol. 82, No. 3, 2006, pp. 553–566; Samuel Moyn, The last utopia: human rights in history (Cambridge, MA: Harvard University Press, 2010), esp. chapter 2; Martti Koskenniemi, ‘International law in the world of ideas’, in James Crawford and Martti Koskenniemi (eds.), The Cambridge companion to international law (Cambridge: Cambridge University Press, 2012), pp. 47–64. Elizabeth Borgwardt’s account of the Nuremberg trials implicitly concords with this view by suggesting that what was most significant about Nuremberg was the constitutionalization of the principles for the future. Elizabeth Borgwardt, ‘“Constitutionalizing” human rights: the rise of the Nuremberg Principles’, in Akira Iriye, Petra Goedde and William I. Hitchcock (eds.), The human rights revolution: an international history (Oxford: Oxford University Press, 2011), pp. 73– 93. See Guilhot, The invention of international relations theory; Judith N. Shklar Legalism: law, morals, and political trials (Cambridge, MA: Harvard University Press, 1964). Caspar Sylvest, ‘Realism and international law: the challenge of John Herz, International Theory, Vol. 2, No. 3, 2010, pp. 410–445. On the rise of human rights as a mass movement, see Moyn, The last utopia, (Cambridge MA: Harvard University Press, 2010), pp. 176– 211. John P. Humphrey, Human rights and the United Nations: a great adventure (Dobbs Ferry: Transnational, 1984), p. 154. Raphael Lemkin, Letter to James Rosenberg, 13 September 1948, Box 1, Folder 19, Raphael Lemkin Collection, American Jewish Historical Society (AJHS). Mark Mazower, ‘The strange triumph of human rights 1933– 1950’, The Historical Journal, Vol. 47, No. 2, 2004, pp. 379 –398; Jacob Robinson et al., Were the minorities treaties a failure? (New York: Institute of Jewish Affairs, 1943); Moses, ‘Raphael Lemkin’, pp. 21–22. Josef Kunz, ‘The present status of the international law for the protection of minorities’, American Journal of International Law, Vol. 48, No. 2, 1954, pp. 282–287; Mazower, ‘The strange triumph of human rights’, pp. 379–398. Vrdoljak, ‘Human rights and genocide’, pp. 1184–1186. According to Michael Ignatieff, Lemkin and Lauterpacht shared a vision of combating violence and barbarism through legal instruments, and ‘their passionate attachment to international law was a consequence of their homelessness everywhere else’. See Michael Ignatieff, ‘Lemkin’s word: the danger of a world without enemies’, The New Republic, 26 February 2001, pp. 25– 28. William Draper and John Ellington, Letter to Eleanor Roosevelt, 9 May 1946, Advisory opinions-case files— reservations to multilateral conventions—Convention on the prevention and punishment of the crime of genocide, file 20606, UN Archives (UNA), New York. 313 Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG 20 Tanya Elder, ‘What you see before your eyes: documenting Raphael Lemkin’s life by exploring his archival papers, 1900–1959’, Journal of Genocide Research, Vol. 7, No. 4, 2005, pp. 469– 499. 21 ‘Hersch Lauterpacht report’, 1948, Brussels conference, International Law Association, 382AP 140, Dossier 1, Fonds Cassin, Paris, Archives Nationales (AN). 22 Hersch Lauterpacht, ‘The Grotian tradition in international law’, British Yearbook of International Law, Vol. 23, No. 2, 1946, pp. 1 –53. 23 ‘Biographical sketch of Raphael Lemkin’, Raphael Lemkin papers, Manuscript and Archives Division, New York Public Library (NYPL), New York. 24 ‘Hersch Lauterpacht report’, AN. 25 Raphael Lemkin, ‘Acts constituting a general danger considered as offenses against the law of nations’ (1933), http://www.preventgenocide.org/lemkin/madrid1933-english.htm. Scholars have identified the source of Lemkin’s worldview in a Herderian belief that cultural and ethnic groups formed the basic units of civilization. This vision was in turn partly inspired by a political vision of extra-territorial ethnic identity in the work of Simon Dubnow. See Rabinbach, ‘The challenge of the unprecedented’, pp. 397– 420; Moses, ‘Raphael Lemkin’, pp. 23– 24. 26 Raphael Lemkin, Letter to John Ennals, 17 July 1948, Box 1, Folder 19, AJHS. 27 See John Cooper for Lemkin’s relationship with de Vabres and Pella. Cooper, Raphael Lemkin, p. 90. 28 See UN Secretary-General, Draft convention on the crime of genocide and comments, 26 June 1947, UN Doc.E/447, at 27. 29 Seyla Benhabib, ‘International law and human plurality in the shadow of totalitarianism: Hannah Arendt and Raphael Lemkin’, Constellations, Vol. 16, No. 2, 2009, pp. 331– 350. 30 Quoted in Cooper, Raphael Lemkin, p. 104. 31 Raphael Lemkin, ’Totally unofficial’, ‘Paris’, p. 32, NYPL. 32 ‘Hersch Lauterpacht report’, AN. On Lauterpacht’s effort to preserve the legal character of the UN Charter and criticism of the UDHR see Moyn, The last utopia, p.184 and ch.5 passim. 33 Draper and Ellington, Letter to Eleanor Roosevelt, UNA. 34 See ‘Correspondence between George Schwarzenberger and Ivan Kerno’, Box 3, HIA; Schwarzenberger, ‘The impact of the east–west rift on international law’, Transactions of the Grotius Society 36 (1950). 35 Raphael Lemkin, ‘Genocide as a crime under international law’, The American Journal of International Law, Vol. 41, 1947, pp. 145– 151. 36 Egon Schwelb, Letter to Humphrey, 7 June 1947, SOA 17/03, UN Organization (UNOG), Geneva. 37 Schwelb described his exchange with Lemkin in a letter to George Brand, a member of the UN War Crime Commission. Egon Schwelb, Letter to George Brand, 18 November 1948, SOA 17/03, UNOG, Geneva. For a recent example of this concern see M. Cherif Bassiouni, Crimes against humanity: historical evolution and contemporary application (Cambridge: Cambridge University Press 2011), p. 209. 38 On the idea that the trials reflected a New Deal pragmatic approach to international justice, see Borgwardt, ‘“Constitutionalizing” human rights’, pp. 73–93. 39 Devin O. Pendas, ‘Toward world law? Human rights and the failure of the legalist paradigm of war’, in Stefan-Ludwig Hoffman (ed.), Human rights in the twentieth century (Cambridge: Cambridge University Press, 2011), pp. 215–237. 40 Egon Schwelb, Letter to George Brand, 5 January 1949, SOA 17/03, UNOG. 41 Members of the UN War Crimes Commission began preparing a document in November 1946 to elaborate the relationship between ‘crimes against humanity’ and the protection of civil populations. Colonel Ledingham, Letter to Trygve Lie, 15 November 1946, SOA 17/03, UNOG. 42 Benjamin Ferencz, Letter to Roosevelt, 3 December 1947, SOA 17/03, UNOG. 43 Perhaps this is the reason why Hans Kelsen described the concept of genocide as primarily of ‘political’ rather than ‘legal’ significance. Hans Kelsen, ‘Review of Axis rule in occupied Europe’, in California Law Review, Vol. 34, No. 1, 1946, p. 271. 44 John Fried, Letter to Humphrey, 1 March 1948, SOA 17/03, UNOG. 45 John Fried, Letter to Humphrey, 21 May 1948, SOA 17/03, UNOG. 46 See correspondence between John Fried and Oscar Schachter, Papers of John H.E. Fried Papers, Series 4 Box 3, German and Jewish Émigré Collection, University of Albany (UoA). 47 Fried, Letter to Humphrey, 21 May 1948, UNOG. 48 See Cooper, Raphael Lemkin, p. 103; Hilary Earl, The Nuremberg SS–Einsatzgruppen trial, 1945– 1958: atrocity, law, and history (Cambridge: Cambridge University Press, 2009). 49 ‘Philippines mission’, 2 August 1950, Papers of John H.E Fried Papers, Box 1 Folder 23, UoA. 50 Shabtai Rosenne, Letter to John Fried, 16 July 1950, Papers of John H.E Fried, Box 1 Folder 23, UoA. 51 Raphael Lemkin, ‘Draft preamble Genocide Convention’, NYPL. 314 Downloaded by [Princeton University] at 05:53 20 June 2015 UNOFFICIAL MEN, EFFICIENT CIVIL SERVANTS 52 Martti Koskenniemi, ‘Hersch Lauterpacht and the development of international criminal law’, Journal of International Criminal Justice, Vol. 2, No. 3, 2004, pp. 810 –825. 53 Compare Lemkin’s repudiation of the nexus between genocide and the laws of war with his efforts in Axis rule in occupied Europe to mark out Nazi violations of Hague Conventions. Raphael Lemkin, Axis rule in occupied Europe, (Clark NJ: The Lawbook Exchange LTD, 2005), p. 77. 54 Raphael Lemkin, Letter to John Ennals, 17 July 1948, Box 1, Folder 19, AJHS. 55 William A. Schabas, ‘International war crimes tribunals and the United States’, Diplomatic History, Vol. 35, No. 5, 2011, pp. 769 –786. 56 Cooper, Raphael Lemkin, p. 214. When it came to the protection of the Convention, and to convincing the United States senate that the Genocide Convention was not a threat to its sovereignty, Lemkin had no qualms about adjoining the Convention to the other projects of the legal committee if it meant making the Convention appear less threatening. In 1950, the UN Legal Committee referred the Genocide Convention to the International Court of Justice to determine whether a reserving state could still be regarded as a party to the Convention. Lemkin worried that sending the Convention to the Court for adjudication would work against him in the American ratification campaign. He wrote to Nasrollah Entezam, the President of the UN General Assembly at that time, pleading with him to send it to the Legal Commission for elaboration rather than to the international Court of Justice so it should not seem exceptional. See Raphael Lemkin, ‘Letter to Nasrollah Entezam’, Ivan S. Kerno Papers, Box 3, Hoover Institution Archives (HIA). 57 Ivan Kerno, ‘The question of the Hungarian minority in Czechoslovakia’, Box 2, HIA. 58 For the history of the profession see Martti Koskenniemi, The gentle civilizer of nations: the rise and fall of international law 1870–1960 (Cambridge: Cambridge University Press, 2001). 59 Martin Wight, ‘Western values in international relations’, in Martin Wight and Herbert Butterfield (eds.), Diplomatic Investigations: Essays in the theory of international politics (London: Allen and Unwin, 1966); Moyn, The last utopia, p. 180. 60 ‘Codification of international law begun to implement UN Charter’, New York Times, 13 July 1946, p. 6. 61 Edwin Borchard, no date, writings and speeches, series v, box 140, Edwin Borchard Papers, manuscript collections, Yale library. 62 Ivan Kerno, ‘Ivan Kerno speech’, 21 March 1947, Box 3, HIA. 63 See Abraham H. Feller, ‘We move, slowly, toward world law’, New York Times, 5 June 1949, SM10, pp. 10, 35, 37. 64 Ivan Kerno, Letter to Liang, 2 May 1947, Box 3, HIA. 65 United Nations, ‘UN newsletter’, Vol. 2, No. 7, 1949, Box 4, HIA. 66 See Hans Kelsen’s reply to Eric Voegelin for the terms of this controversy. Eckhart Arnold (ed.), A new science of politics: Hans Kelsen’s reply to Eric Voegelin’s ‘New science of politics’: a contribution to the critique of ideology (Frankfurt: Ontos Verlag, 2004). 67 Vespasian Pella, Letter to Kerno, Box 2, HIA. 68 Proceedings of the American Society of International Law, Vol. 65, 1949. 69 Schabas, Genocide in international law, p. 370. It is also significant that Lemkin’s main objective was to anchor genocide protection in domestic criminal codes that would, in turn, describe ‘concisely and accurately basic destructive acts against minorities’. See Raphael Lemkin, ‘The protection of basic human rights of minorities in the forthcoming peace treaties’, Box 7, Folder 2, AJHS. I am grateful to Dirk Moses for pointing out this source. 70 Cooper, Raphael Lemkin, p. 81. 71 Schwarzenberger became an outsider in the British legal establishment due to his writing on international society. Hersch Lauterpacht, for example, prevented his promotion. See Stephanie Steinle ‘Georg Schwarzenberger’, in J. Beatson and Reinhard Zimmerman (eds.), Jurists uprooted: German-speaking émigré lawyers in twentieth century Britain (Oxford: Oxford University Press, 2004), pp. 663– 681. 72 Gertrude Samuels, ‘Owen of the UN: the job of this mild, bespectacled Welshman is to build an “international civil service”’, New York Times, 7 April 1946, p. 108. 73 Gertrude Samuels, ‘A treaty for the people’, New York Times, 11 October 1947, p. 16. 74 Another American UN correspondent who supported Lemkin likewise conveyed distaste for the culture and practices of the League era. A. M. Rosenthal remembered the UN in 1946 as full of energy and optimism. His reminiscence emphasized the informal nature of communication among diplomats in lounges and corridors in contrast to the stodgy formality of the ‘old League’. A. M. Rosenthal, ‘Old-and zestful—an old UN hand recalls a time of newness and adventure and the taste of hope’, New York Times, 23 April 1961, p. 229. 75 ‘Press release’, undated, Box 3, HIA. 76 Raphael Lemkin, ‘Totally Unofficial’, ‘chapter 8’, pp. 4 –5, NYPL. 77 Manley Hudson, Letter to Kerno, 24 September 1952, Box 1, HIA. 315 Downloaded by [Princeton University] at 05:53 20 June 2015 MIRA L. SIEGELBERG 78 Paul Weis, ‘Diplomatic protection of nationals and international protection of human rights’, in Droit International et Droit Compare, Vol. IV, No. 2/3, 1971, p. 643. 79 Lemkin, ‘Totally unofficial’, ‘Paris’, p. 5. 80 Lemkin, ‘Totally unofficial’, ‘Paris’, p. 32. 81 Cooper, Raphael Lemkin, p. 130. 82 Pearl S. Buck, Letter to Lemkin, undated, Box 1, Folder 17, AJHS. 83 ‘Press release’, undated, Box 3, HIA. 84 For the history of transnational Jewish activism to protect religious minorities and the emergence of minority protection as a standard of ‘civilization’ see Abigail Green, Moses Montefiore: Jewish liberator, imperial hero Cambridge MA: Cambridge University Press, 2010; Lisa Leff, Sacred bonds of solidarity: the rise of Jewish internationalism in nineteenth century France (Stanford: Stanford University Press, 2006). 85 Rabinbach, ‘The challenge of the unprecedented’, pp. 397–420. 86 Raphael Lemkin, Letter to Rosenberg, Box 1, Folder 19, AJHS. Lemkin also utilized the paranoid style of the times to his benefit when he spread a rumor that Vespasian Pella and Ivan Kerno were part of a communist conspiracy. See ‘Come clean Dr Kerno’, America, 18 October 1952, Box I, HIA. John Cooper states that Lemkin was friendly with the editor of America, a national Catholic weekly. See Cooper, Raphael Lemkin, pp. 216 –218. 87 Martti Koskenniemi, ‘A history of international law histories’, in Bardo Fassbender and Ann Peters (eds.), The Oxford handbook of the history of international law (Oxford: Oxford University Press, 2012), pp. 943–972. 88 On international law as a feature of the Victorian vision of world order see Martti Koskenniemi, ‘Lauterpacht: the Victorian tradition in international law’, European Journal of International Law, Vol. 8, No. 2, 1997, pp. 215 –263. 89 Lemkin received support to lobby for the Genocide Convention from the Institute of Jewish Affairs and the World Jewish Congress. Both groups were disappointed that the International Military Tribunal did not include prewar racial and religious persecution in the crime against humanity charge. However, leaders of the IJA like Jacob Robinson wanted to preserve the concept of genocide for Jewish persecution alone. See Mark A. Lewis, ‘The World Jewish Congress and the Institute for International Affairs at Nuremberg: ideas, strategies and political goals, 1942–1946’, Yad Vashem Studies, Vol. 36, No. 1, 2008, pp. 181– 210. On Lemkin’s place within anticolonial political thought, see Andrew Fitzmaurice, ‘Anticolonialism in western political thought: the colonial origins of the concept of genocide’ in A. Dirk Moses (ed.), Empire, colony, genocide: conquest, occupation, and subaltern resistance in world history (Berghahn Books, 2008), pp. 55–81. 90 Fitzmaurice, ‘Anticolonialism in western thought’, p. 74. 91 Perry S. Bechky, ‘Lemkin’s situation: towards a rhetorical understanding of genocide’, Brooklyn Law Review, Vol.77, No. 2, 2012, pp. 551– 624. Notes on contributor Mira Siegelberg is a PhD candidate in international history at Harvard University. She studies the history of international legal and political order, as well as the history of human rights. She is currently writing an international history of statelessness. 316

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