A Problem From Hell

by Samantha Power

  The genocide convention also earned criticism for stipulating that a perpetrator could attempt to obliterate a group not only by killing its members but by causing serious bodily or mental harm, deliberately inflicting damaging conditions of life, preventing births, or forcibly removing children. But in order to constitute acts of genocide, these crimes could not be carried out in isolation. They had to be a piece of a plan to destroy all or part of the designated group. The aim of including acts besides murder was to ensure that the international community looked to—and reacted against—such “lesser” crimes as mini-massacres, population transfers, and sterilization because they were evils in their own right and because they fell on a continuum that often preceded the physical elimination of a people. In criminal law an intent to commit a crime is generally hard to prove, and intent to commit genocide even harder. Only rarely would those planning a genocide record their intentions on tape or in documents. Proving an intent to exterminate an entire people would usually be impossible until the bulk of the group had already been wiped out. The convention drafters believed it would be better to act too soon rather than too late. When one group started expelling another group from its midst, as the Turks had done in 1915 and the Serbs would do in Bosnia in 1992, it could signal a larger plan of destruction.

  The law’s opponents ignored the reasoning that lay behind the ban’s provisions. Instead they zeroed in on the possibility of stretching the new law’s language to apply to practices too mild to warrant interference in another state’s domestic affairs. Some suggested that U.S. ratification would license critics of the United States to investigate the eradication of Native American tribes in the nineteenth century.8 Southern senators feared that inventive lawyers might argue that segregation in the South inflicted “mental harm” and thus counted as genocide.9 Legislators warned that the convention would empower politicized rabble-rousers to drag the United States or the senators themselves before an international court.

  Reckoning with American brutality against native peoples was long overdue, but the convention, which was not retroactive, could not be used to press the matter. And although the United States’ dismal record on race certainly exposed it to charges of racism and human rights abuse, only a wildly exaggerated reading of the genocide convention left the southern lawmakers vulnerable to genocide charges. Lemkin himself addressed the issue: “In the Negro problem the intent is to preserve the group on a different level of existence,” he said, “but not to destroy it.”10 Eunice Carter, a spokeswoman for the National Council on Negro Women, agreed, testifying that “the lynching of an individual or of several individuals has no relation to the extinction of masses of peoples because of race, religion, or political belief.” The council supported the convention because women and children were often the first victims of genocide and because minorities would be safe nowhere if genocide went “unchecked or unpunished.”11

  Again, the 1950 Senate subcommittee had sought to soothe the senators’ fears by attaching an explicit, legal “understanding” that shielded the southern states by stating clearly, “Genocide does not apply to lynchings, race riots or any form of segregation.” The critics did not heed this (embarrassing) recommendation. Nor did they acknowledge that “trumped-up” charges could be filed regardless of whether the United States ratified the convention. The problem in the decades ahead would not be that too many states would file genocide charges against fellow states at the International Court of Justice (ICJ). Rather, too few would do so. And as of late 2001 no state had yet dared to challenge the United States by filing genocide charges against it in the ICJ. The southern opposition was driven mainly by xenophobia and an isolationism that led it to try to exempt the United States from all international frameworks.

  Lemkin himself became a target of xenophobic slurs. In 1950 Senate Foreign Relations Committee member H. Alexander Smith (R.–N.J.) was aggrieved that the “biggest propagandist” for the convention was “a man who comes from a foreign country who . . . speaks broken English.” The senator claimed to know “many people . . .irritated no end by this fellow running around.” Senator Henry Cabot Lodge (R.-Mass.), who supported ratification, suggested that somebody tell Lemkin he had “done his own cause a great deal of harm.” Much of the criticism was rooted less in Lemkin’s tirelessness than in his Jewishness. Smith said that he himself was “sympathetic with the Jewish people,” but “they ought not to be the ones who are propagandizing [for the convention], and they are.”12 Despite having invented the concept of genocide, Lemkin was not invited by the Senate subcommittee to testify in the congressional hearings on ratification.

  Lemkin reflected upon congressional opposition to his convention by noting, “If somebody does not like mustard, he will always find a reason why he doesn’t like it, after you have convinced him that the previous reason has no validity.” Critics complained that the treaty was both too broad (and thus could implicate the United States) and not broad enough (and thus might not implicate the Soviet Union). Although it protected “national, ethnical or religious groups” that were targeted “as such,” the law did not protect political groups. The Soviet delegation and its supporters, mainly Communist countries in Eastern Europe as well as some Latin American countries, had argued that including political groups in the convention would inhibit states that were attempting to suppress internal armed revolt.13 Behind the Soviet position was the fear that the convention would invite outside powers to punish Stalin for wiping out national minorities throughout Central Asia, as well as his alleged counterrevolutionary “enemies.” Stalin, it came as no surprise, was not interested in creating a right of international intervention (or what he considered a right of unwanted meddling) to stop such practices. Because Lemkin recognized that including political groups would split the Legal Committee and doom the law, he, too, had lobbied for their exclusion.14 Instead of curing the law of its defects or supplementing it with other measures, American critics contended that a state had arguably committed genocide if it caused mental harm to five persons because of the color of their skin but had not committed genocide if it killed 100,000 people because of the color of their party membership card. The exclusion of political groups from the convention made it much harder in the late 1970s to demonstrate that the Khmer Rouge were committing genocide in Cambodia when they set out to wipe out whole classes of alleged “political enemies.”

  The core American objections to the treaty, of course, had little to do with the text, which was no vaguer than any other law that had not yet been interpreted in a courtroom. Rather, American opposition was rooted in a traditional hostility toward any infringement on U.S. sovereignty, which was only amplified by the red scare of the 1950s. If the United States ratified the pact, senators worried they would thus authorize outsiders to poke around in the internal affairs of the United States or embroil the country in an “entangling alliance.” It was hard to see how it was in the U.S. interest to make a state’s treatment of its own citizens the legitimate object of international scrutiny. Genocide prevention was a low priority in the United States, and international law offered few rewards to the most powerful nation on earth.

  In May 1950 McMahon’s Senate subcommittee reported favorably on the treaty, but the North Korean invasion of South Korea the following month caused the Foreign Relations Committee to postpone its vote. The war unleashed an anti-Communist panic. Republican senators Joseph McCarthy and John Bricker criticized the United Nations as a “world government” that had dragged the United States into war. They were champions of states’ rights, which they said the federal government was trampling by joining international treaties. The genocide convention represented a stronger UN at the expense of American sovereignty and a stronger federal government at the expense of the states. Senator A. Willis Robertson, a conservative Democrat from Virginia and a Bricker supporter, wrote that he already had “enough trouble with do-gooders in our own country” who demanded a federal government role in regulating human rights. The Ameri
can people certainly did not need the United Nations applying “that same type of pressure.”15 In 1952, hoping to limit the federal government’s power and backed overwhelmingly by Senate Republicans, Bricker introduced an amendment to the U.S. Constitution that would have reduced the president’s authority to approve foreign treaties.

  When Eisenhower succeeded Truman in 1953, Lemkin viewed the former U.S. general as a natural ally. After his troops had liberated the Buchenwald concentration camp, Eisenhower had fired off a cable to Army Chief of Staff George Marshall denouncing the Nazi savagery: “We are told that the American soldier does not know what he is fighting for,” Eisenhower said, reflecting on the piles of corpses. “Now, at least, he will know what he is fighting against.” But generals are taught to choose their battles, and Eisenhower quickly dropped the fight for the genocide convention. In 1953, in the hopes of appeasing Bricker’s supporters, the president disavowed this and all human rights treaties.16 Secretary of State John Foster Dulles pledged that the administration would never “become a party to any covenant [on human rights] for consideration by the Senate.” He also flatly abrogated the Nuremberg precedent, charging that the genocide convention exceeded the “traditional limits” of treaties by attempting to generate “internal social changes” in other countries. The United States would advance human rights through education, Dulles declared, not through law.

  The genocide convention was far from perfect. But whatever its ambiguities, its ratification in the U.S. Senate would have signaled to the world and the American people that the United States believed genocide was an international crime that should be prevented and punished, wherever it occurred. It would have required the United States to prosecute genocide suspects who wandered onto American shores. And it would have empowered and obligated American policymakers “to undertake” to stop future genocide.

  The Home Front

  Just as he had earlier tried to drum up international support, Lemkin here tried to create a U.S. constituency for ratification with speaking tours, opeds, and mass mailings. Hoping to get Eisenhower to reverse his position, Lemkin borrowed stationery from supportive community organizations, applied for grants to pay for postage, and sent thousands of letters to absolutely anybody whose moral heartstrings he felt he might tug or on whose connections he might prey to get the ear of a U.S. senator. Although most of his letters contained a mix of flattery and moral prodding, he sometimes slipped into bluntly bullying his contacts and demanding that they acquire a conscience. Thelma Stevens, a volunteer at the Methodist Women’s Council, was probably startled one summer to read this portion of an otherwise grateful letter from Lemkin urging her to coordinate a campaign on behalf of Senate passage:

  This Convention is a matter of our conscience and is a test of our personal relationship to evil. I know it is very hot in July and August for work and planning, but without becoming sentimental or trying to use colorful speech, let us not forget that the heat of this month is less unbearable to us than the heat in the ovens of Auschwitz and Dachau and more lenient than the murderous heat in the desert of Aleppo which burned to death the bodies of hundreds of thousands of Christian Armenian victims of genocide in 1915.17

  Humorless though he was, Lemkin knew it was essential for him to win over elite opinion. He struck up his most fruitful correspondence with Gertrude Samuels of the New York Times editorial board. Samuels’s editorials, which appeared in the paper throughout the ratification fight, often seemed to flow right from Lemkin’s pen. At first they echoed his conviction; later they reflected his frustration. One editorial termed the criminalization of genocide “one of the greatest civilizing ideas of our century” and lambasted the Senate for its “indifference and delay.” Another used the same words that Lemkin had penned to Samuels in a letter dated June 6, 1950: “Humanity is our client,” the editorial proclaimed. “Every day of delay is concession to crime.”18 Lemkin was eager to be plagiarized.

  Lemkin also attempted to mobilize American grassroots groups. The international human rights organizations familiar to us today did not yet exist. Amnesty International was not founded until 1961, and Helsinki Watch, which later grew into Human Rights Watch, was set up only in 1978. But four decades ahead of the dramatic power shift toward nongovernmental organizations that occurred in the 1990s, Lemkin enlisted a panoply of American civic organizations, churches, and synagogues.19 The U.S. Committee for a United Nations Genocide Convention was formed, made up of representatives and leaders from a wide range of organizations, from the Federal Council of Churches of Christ and the American Association for the UN to the National Council of Women and the American Federation of Labor (AFL).20 The American Jewish Committee, the American Zionist Council, and B’nai B’rith gave some financial support to Lemkin as he tried to chip away at U.S. opposition.

  Lemkin was at a disadvantage in the immediate postwar period because the singular genocide so well known today was barely discussed.21 American Jews who would later became a potent force in promoting Holocaust commemoration and education were reticent, eager to assimilate, leery of fueling further anti-Semitism, and determined not to be depicted as victims. Other Americans were uncomfortable with the topic of extermination.

  In the rare instances when Hitler’s genocide was mentioned, American television and film revealed a desire to inform viewers without alienating them. In one example, a May 1953 episode of This Is Your Life introduced many American television viewers to a Holocaust survivor for the first time. Host Ralph Edwards profiled Hanna Bloch Kohner, a woman in her thirties who had survived Auschwitz. “Looking at you it’s hard to believe that during seven short years of a still short life, you lived a lifetime of fear, terror and tragedy,” Edwards declared, telling her she looked “like a young American girl just out of college, not at all like a survivor of Hitler’s cruel purge of German Jews.” Never mentioning that 6 million Jews had been murdered, Edwards adopted a tone of renewal that characterized the optimistic age: “This is your life, Hanna Bloch Kohner. To you in your darkest hour, America held out a friendly hand. Your gratitude is reflected in your unwavering devotion and loyalty to the land of your adoption.”22

  The dramatization of the Diary of Anne Frank, which began running in 1955, garnered huge crowds, rave reviews, a Pulitzer Prize, and a Tony Award for best play, but as both critics and fans of the play have noted, young Anne embodied the American mood by refusing to lose her faith in humanity.23 The film version of the Diary, which premiered in 1959 and won three Academy Awards, largely omitted the Holocaust from the narrative. Director George Stevens, who had served in the U.S. Army and entered Dachau with the American liberators, screened an early version of the film in San Francisco. The last shot depicted Anne in a concentration camp uniform swaying in the fog, but after the preview he cut the scene because he thought it was “too tough in audience impact.”24 Instead, the film adopted the hopeful ending of the play, in which Anne declares, “In spite of everything, I still believe that people are really good at heart.” Anne actually went on to write in her diary: “I simply can’t build up my hopes on a foundation consisting of confusion, misery, and death.” But this was omitted, as it was far too somber a tone for Stevens or play director Garson Kanin, who said that he did not consider the infliction of depression on an audience “a legitimate theatrical end.”25

  Hollywood eased into more realistic accounts of the horrors. The 1961 film Judgment at Nuremberg, starring Judy Garland and Spencer Tracy, jarred millions of viewers by including actual graphic footage from the camps, but the film contained few references to the specific victim groups.26 When a major network sponsor, the American Gas Association, objected to the mention of gas chambers in the 1959 teleplay version of the film, CBS caved in to pressure and blanked out the references.27 The word “holocaust” did not appear in the New York Times until 1959.28

  Only in the late 1960s did people who had spoken of a holocaust and then the holocaust begin to use the capital letter to specify the German destruction of E
urope’s Jews. The references to the Holocaust had become sufficiently widespread that by 1968 the Library of Congress had to create a class of work called “Holocaust: Jewish 1939–1945.”29 The Readers’ Guide to Periodical Literature did not include the subject heading until 1971. American memorials to Hitler’s crimes against the Jews did not exist. Even such celebrated works as Elie Wiesel’s Night and Primo Levi’s Survival in Auschwitz had trouble finding publishers.30 It was not really until the 1970s that Americans became prepared to discuss the horrors.

  With America unwilling in the 1950s to confront Hitler’s Final Solution, it is not surprising that Lemkin, with his briefcase bulging with gruesome parables and his indefatigable, in-your-face manner, earned few friends on Capitol Hill.

  Picking Fights

  Lemkin took out much of his mounting frustration on an unlikely target: spokespersons for the cause of human rights. At the 1945 conference in San Francisco where the UN charter was drafted, smaller nations of the United Nations, as well as American church, Jewish, labor, and women’s groups, had helped secure seven references to human rights in the UN founding charter. Because the content of these rights and the enforcement mechanisms were left open, a Human Rights Commission chaired by Eleanor Roosevelt was formed to draw up an “international bill of rights” that would consist of a Universal Declaration of Human Rights (UDHR) as well as a pair of binding legal conventions.