David Mayers. Diplomacy & Statecraft. Volume 26, Issue 3. September 2015.
By approving prohibitions on genocide and embracing the Universal Declaration of Human Rights (UDHR), the United Nations in 1948 sustained a theory premised on the centrality of people—both in their collective and individual capacities—that enjoyed primacy over the claims of the sovereign state. This affirmation of human rights dovetailed with the UN’s earlier endorsement of the Nuremberg principles with their emphasis on personal accountability. The melding of privileges and responsibilities gestured toward, although it did not fully encompass, that philosophical line strenuously espoused at the time by the eminent legal theorist, Hersch Lauterpacht: the state is not a sanctified end but merely the custodian of the welfare and ultimate purpose of human beings. This analysis examines the Genocide Convention and the UDHR and brings into conversation their drafting histories, politics, and diplomacy. It traces the saga of two seminal documents and their tandem fates in Cold War America. The collectivist project of the Genocide Convention and the individualistic emphasis of the UDHR are usefully placed in the same analytical frame, something seldom done in the literature that deals with human rights and norms-making of the late 1940s and their interaction with Cold War dilemmas. As peoples and governments pick their way through the hazards of the twenty-first century, it is exigent—for the sake of upright bearing—to stay mindful of the orientation prescribed in the Genocide Convention and the UDHR.
The human rights chrysalis burst open in December 1948, when the United Nations (UN) General Assembly adopted both the Convention on the Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights (UDHR). These together upheld a version of humanity contrary to the atavism of the Second World War. They also constituted an advance in international thought the significance of which scholasticism and partisan wrangling over the genealogy of rights discourse have obscured periodically, to say nothing of the slurs visited upon these two documents by guardians of public safety during the Cold War.
In effect, in 1948, the UN challenged the presumption of sovereign state reason and promoted an alternative. The human person, in collective and private life, was deemed—momentarily by concession of diverse national regimes—to have rights rooted in inalienable dignity and intrinsic worth that existed prior to the state and were independent of anything conferred in its gift. What the International Military Tribunal (IMT) at Nuremberg in 1945-1946 confirmed against the untouchable state was further extended. In the case of exterminating states, exemplified by Nazi Germany, they would thenceforth find no security, at least in theory, but would live under censure and sanction.
The redoubtable Raphael Lemkin was decisive in formulating the Genocide Convention, then in its passage by the General Assembly. He coined the neologism genocide. The UDHR, by contrast, was a composite document conceived and drafted in committee, chaired by the widow of President Franklin Roosevelt, Eleanor Roosevelt. Sometimes celebrated, other times traduced, Lemkin and the former First Lady promoted—albeit separately and in opposition—ideas that dominated the post-war human rights moment.
The Convention and Declaration each inspired sceptics in Cold War America. Across the political spectrum from right to left, along cultural-philosophical divides, and from political leaders to pundits, the two initiatives elicited jeers, shrugs, and bafflement. After all, observed various commentators in 1948, the East-West split of Europe was deepening: Greek civil war, a communist coup in Prague, Soviet blockade of Berlin. Whilst rumours of impending war circulated, the Lemkin-Roosevelt measures seemed distracting, expressions of shallow optimism and unhelpful in view of ongoing emergencies. Outside of Europe, meanwhile, other regions were also roiled—sectarian mayhem in partitioned India-Pakistan, bloodletting in Palestine-Israel, civil war in China—against which Lemkin-Roosevelt high-mindedness appeared likewise superfluous. Not given to hyperbole, the otherwise unflappable secretary of state, George Marshall, likened the world situation in 1948 to a keg of dynamite.
In the decades that followed, self-styled realists, plus less flinty people, cited abundant evidence that challenged the purported wisdom and alleged universalism implied in Lemkin-Roosevelt sensibility: the Soviet-American nuclear arms race, genocides in Southeast Asia and Africa, ethnic cleansings in former Yugoslavia, vaulting inequality between people living in the impoverished global south versus residents of the affluent north. Still, against such objection and bleakness other voices insisted that affirmative ideas contained merit and heaved with implications for right conduct, a view to which Lemkin and Roosevelt assented, even as they regarded their 1948 achievements as provisional stations leading to a better world. Thus checked, the sovereign state, a behemoth possessed of boundless pretension, would accommodate cosmopolitan concepts of humanity.
The events related below hardly clinch the case argued by John Stuart Mill: ‘improvement in human affairs is wholly the work of the uncontented characters.’Yet Lemkin, churning genius, does fit. So does Roosevelt. Righteousness drove her to expand the ambit of human rights, once ridiculed as simply a feminine field. Created by states but not their tool, the UDHR, like the Genocide Convention, earned a place in international politics. They have enriched the repertoire of commonly held ideas and even inflected practice.
Lemkin’s preoccupation with the extinction of human groups arose during his youth. Born in 1900 to a Jewish farming family, he grew up in the Russian zone of partitioned Poland, subject to pogroms and otherwise layered in latent menace. To this background, the weight of Armenian reports added to his thinking, first as an adolescent, then whilst a student of philology and law at the University of Lwow, where he decided that state sovereignty could not justify the massacre of innocents. Later, despite professional success in interwar Poland—attorney, public prosecutor, prolific author, law professor—he endured anti-Semitic taunts and edicts. Then, during the Shoah, Lemkin suffered searing loss: his parents and more than forty members of his extended family perished at Treblinka. He thereafter became a zealot for the legal protection of existentially threatened peoples.
Some commentators before Lemkin had despaired of normal language to categorise instances of catastrophe meted out by victimisers. Theodore Roosevelt in 1916 decried Turkish acts against the Armenian population as so astonishing that they defied words. In similar fashion in August 1941, Churchill reported on gruesome Nazi doings in Soviet territories invaded by the Wehrmacht. They beggared available vocabulary: ‘We are in the presence of a crime without a name.’ Several pre-Lemkin critics groped or experimented with the puzzle of naming. Reviewing their country’s African colonial wars, German writers spoke of Volkermord: ‘murder of a nation.’ Woodrow Wilson’s ambassador to Constantinople, Henry Morgenthau, referred to Armenian suffering in the Ottoman Empire as ‘race murder.’ Franz Werfel in his acclaimed The Forty Days of Musa Dagh called this same the ‘extirpation’ of a people. Ukrainians labelled Stalin’s killer-famine of 1932-1933 with its millions of victims the holodomor: ‘hunger-extermination.’
British IMT prosecutors—Sir Hartley Shawcross and Sir David Maxwell Fyfe—did refer to genocide, but only hesitantly and inconsistently. Unsurprisingly, they failed to press or win convictions with it. Nor did the tribunes in their final judgment explicitly mention genocide. American Brigadier General Telford Taylor at the subsequent 1946-1949 Nuremberg Military Tribunal (NMT), though familiar with Lemkin’s terminology, was not fully confident about its legal standing or wider implications. Consequently, Taylor sometimes used other language to designate German programmes: thanatology, ‘the science of producing death.’ Nevertheless, the NMT convicted a number of defendants for genocide—the RuSHA case—when implicated with German military aggression, the first ever-such judgment. Despite a shaky debut, genocide did seep into usage—at not only Nuremberg but elsewhere, too, as when Poland’s Supreme National Tribunal used the term against Rudolf Hoess, Auschwitz’s commandant, and accused other senior figures, Arthur Greiser and Amon Goeth, of launching genocidal assault upon the Polish nation.
Albeit less frequently used than he wanted, Lemkin read the deployment of genocide in Nuremberg and Poland as partial vindication. Like other people, he had struggled to create language apposite to communal homicide. Years before he devised genocide in 1943, he had hoped to sponsor a resolution at the International Conference for the Unification of Criminal Penal Law—convened in October 1933 at Madrid—mandating punishment for barbarism and vandalism. The destruction by violence or economic discrimination of ethnic, social, and religious groups constituted barbarism. He defined vandalism as expunging those customs-traditions and cultural-artistic monuments—archives, churches, museums, literature—that embodied a people’s creativity or legacy, often also entailing the physical demolition of the society’s cultural bearing stratum. These crimes of barbarism and vandalism, Lemkin believed—vivid against a backdrop of refugees fleeing the Third Reich, mounting pressure upon Jews in Poland, and Assyrian Christians assailed in Iraq—should expose perpetrators to the principle of universal jurisdiction, warranting legal action by responsible states as for crimes of piracy, slavery, human trafficking, and narcotics dealing. It should take form in the arrest and trial by any Power of alleged offenders, irrespective of the crime sites or the nationality or domicile of the presumed culprits.
In the event, the Polish government prevented Lemkin from attending the Madrid conference. There his proposed convention, read by proxy delegate, provoked Nazi scorn; the president of the University of Berlin and the head of the German Supreme Court exited the conference hall as Lemkin’s plan came forward. It thereafter languished, never brought to a vote. In 1934, Warsaw disavowed the 1919 multilateral Minorities Rights Treaty, whose purpose had been to guarantee the welfare of Poland’s ethnic and smaller religious groups. That same year, Foreign Minister Jozef Beck engineered Warsaw’s non-aggression pact with Berlin, eventually undone by the invasion of 1 September 1939.
The German-Polish war shoved Lemkin into army service, a wrenching farewell to his parents, then a harrowing flight via Lithuania and Latvia to Sweden. Through the intercession of friends in the Swedish justice ministry, he gained asylum and employment as lecturer at the University of Stockholm law school. From thence, after trans-Siberian journey and Pacific passage, he made his way in spring 1941 to North Carolina and a professorial assignment at Duke University law school, arranged by an American colleague, Malcolm McDermott, with whom he had collaborated in the 1930s translating and publishing Polish criminal statutes. Although disturbed by the Jim Crow regime, and sympathetic to Afro-Americans whose plight he likened to that of Jews in Eastern Europe, Lemkin eagerly entered into New World life. He admired the United States as a place ‘born out of moral indignation against oppression.’
Whilst at Duke, Lemkin aided the interventionist cause via public lectures. He warned audiences that the United States must promptly join the Allies lest the Axis Powers conquer Europe and place their stamp upon world politics. He also emphasised the radical nature of Nazi ambitions: to re-configure the demographic composition of Europe in favour of Germans, with concomitant devastation to the Polish, and other Slavic, Jewish, and Roma populations. After Pearl Harbor, continuing to sound the alarm that these peoples were in imminent peril, he directly appealed to Roosevelt and Vice-President Henry Wallace, but without noticeable effect. ‘The Nazi plan was so outrageous,’ Lemkin later reflected, ‘that nobody believe[d] it.’ He meanwhile relocated to Washington. He was consultant to the Board of Economic Warfare, obtained a position in the War Crimes Office of the Judge Advocate General’s Office, advised the War Department on foreign affairs, and in 1945 helped Justice Robert Jackson draft the IMT indictment of major German leaders.
Lemkin’s main feat during these war years was his November 1944 publication of a tome, Axis Rule in Occupied Europe, sponsored by the Carnegie Endowment for International Peace and later cited at Nuremberg. This work rested upon copious documented evidence—collected by Lemkin in Stockholm and Duke—about Berlin’s ongoing policies in Nazi-dominated countries. ‘The objective,’ he wrote, ‘is to destroy or to cripple the subjugated peoples in their development so that [Germany] will be in a position to deal with other European nations from the vantage point of numerical, physical, and economic superiority.’
Famously in Axis Rule, Lemkin fastened his philological imagination to the unfolding emergency. He wanted genocide to startle people, to concentrate their minds, if possible to prod Allied governments into taking steps to prevent cultural and biological extinguishments. His new word, he explained, melded the ancient Greek term for race or tribe, genos, with the Latin word for killing, cide. In elaborating upon this, he drew from ideas earlier advanced in his barbarism and vandalism formulae:
Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves …. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.
Lemkin acknowledged that his lexicographical innovation applied to phenomena that were centuries old and without geographical limits. He held that the scale of Nazi murder of Poles, Jews, Roma, and others was neither unique to Europe nor to the twentieth century. On this subject, he actually hoped to publish—he never finished—a scholarly treatise, History of Genocide. Its projected compass was global and comparative. It was to include Emperor Nero’s campaign to obliterate Christian communities, Jews slaughtered in the Middle Ages, Mongol cruelties in Russia, Moors expelled from Spain, peoples of the Americas and Australasia crushed by Europeans, Huguenots massacred on St. Bartholomew’s Day in 1572, Roman Catholic converts annihilated in seventeenth-century Japan, Belgian-inflicted suffering in the Congo, German liquidating Herero tribesmen in South West Africa during the reign of Kaiser Wilhelm II, and the killing of Armenian and Greek subjects on Ottoman authority before and during the First World War.
As detailed in Axis Rule, two distinct stages marked Lemkin’s genocide. In the first, destruction of the national modalities and conformation of the victims occurred. In the second, the oppressors imposed their social-cultural implacability. To these ends, there were several closely co-ordinated actions—illustrated by Nazi policies.
Genocide is effected through a synchronized attack on different aspects of life of the captive peoples: in the political field (by destroying institutions of self-government and imposing a German pattern of administration, and through colonization by Germans); in the social field (by disrupting the social cohesion of the nation involved and killing or removing elements such as the intelligentsia, which provide spiritual leadership) …. in the field of physical existence (by introducing a starvation rationing system for non-Germans and by mass killings, mainly of Jews, Poles, Slovenes, and Russians) …. in the field of morality (by attempts to create an atmosphere of moral debasement through promoting pornographic publications and motion pictures, and the excessive consumption of alcohol).
Lemkin ended his genocide dissertation by calling for a treaty of prohibition, along the lines that he had urged in 1933 at Madrid. Only through multilateral agreement and enforcement mechanisms, he reiterated, would every nation, with its indispensable contribution to world society, be guaranteed into the future and would-be persecutors inhibited. Justice and humanity’s splendid diversity demanded legal protection. The UN General Assembly, reeling under the Nuremberg revelations and spurred by Lemkin, agreed. Delegates from India, Cuba, and Panama, assisted by the United States, sponsored a resolution approved by the General Assembly in December 1946; it declared genocide an international crime and instructed the UN Economic and Social Council (ECOSOC) to devise a binding text. In turn, ECOSOC looked to the UN Secretariat to aid this enterprise. That office employed consultants of whom Lemkin was one—plus Romania’s Vespasian Pella and former Nuremberg tribune Henri Donnedieu de Vabres—to compose the Convention’s preliminary draft. It was finished by June 1947.
As voted by the General Assembly on 9 December 1948, the Genocide Convention strayed in ways from Lemkin’s original concepts. Yet Lemkin regarded it as a defensible improvement over previous injunctions and laws. Relentless lobbying for it destroyed much of his emotional equilibrium and physical wellbeing. Exhausted, veering toward nervous collapse, he wept uncontrollably on learning that the General Assembly had unanimously passed the Convention—an affirmation that his murdered parents and numberless other people had not lived or died futilely.
The Convention’s final text condemned genocide for having plagued all eras. It was henceforth, whether in peace or war, in domestic circumstances or abroad, a punishable and extraditable offense under international law. Anyone, private person or public official, who committed or attempted genocide, or was complicit through incitement or conspiracy, would be subject to prosecution either in the territory in which the crime was committed or in other suitable jurisdictions, including international penal tribunals. Article II contained the heart of the Convention:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
Lemkin was gratified that the Convention distinguished genocide from general crimes against humanity and termed it as unpardonable in times of peace as in war, an important switch from Nuremberg rulings that had placed genocide only within the context of aggressive war. He was also pleased that the Convention resisted the idea, once promoted by Pella and de Vabres, to recognise lethal attack on political groups as a species of genocide. The violent persecution of partisan parties, Lemkin agreed, was reprehensible, but it did not constitute intended obliteration of an entire people. The major flaw in the Convention, he felt, was its silence on cultural genocide—what he earlier phrased as vandalism—and failure to recognise that a people could disappear into a cauldron of enforced homogeneity, no less fatal to a group than biological decrease. Here, too, he had disagreed with Pella and de Vabres. Neither doubted the centrality of physical destruction to genocide, but they were undecided about the cultural aspect.
Between the first drafting of the Convention and the General Assembly’s endorsement, Lemkin functioned as a cross between impresario and one-man pressure group. He cornered and badgered UN delegates, representing 58 countries in 1948. To John Humphrey, a Canadian legal scholar and director of the Secretariat’s Human Rights Division, Lemkin seemed to have besieged UN headquarters, temporarily housed in Lake Success, New York: ‘He could be seen everywhere in the committee-rooms and, by common consent, was accorded privileges denied to other private individuals. But he was a very difficult man who looked for enemies under every bench.’
Lemkin had to overcome sceptical delegations, not exactly personal foes as he often imagined, but potentially recalcitrant; the British, French, and Soviet were most prominent. Their reservations centred on doubts that a genocide convention would have efficacy or, more damaging, might be used as a tool to investigate the fate of subject peoples within the sprawling domains controlled by London, Paris, and Moscow. Moreover, the Soviets, led in the UN by Andrei Vyshinsky, wished to tie genocide organically to racialism of the fascist variant. Arab representatives suspected that Zionists might promote the proposed convention for their cause in Palestine. A French delegate on ECOSOC sniffed that genocide was of doubtful invention, an inelegant Greek and Latin bastard.
Against this opposition, Lemkin recruited disparate allies and fused them in common cause. This coalition included Christian denominations in the United States and elsewhere: Protestant, Eastern Orthodox, and Roman Catholic. He successfully courted the papal nuncio in Paris, Cardinal Roncalli, the future Pope John XXIII. Lemkin enlisted Jewish figures and organisations to whom, in the wake of Nazi darkness, the Convention equalled belated enlightenment. Ecumenical associations, such as the National Council of Christians and Jews, gravitated toward Lemkin as well. He meantime recruited literary personalities, for example, two obliging Nobel laureates: Pearl S. Buck and Gabriela Mistral, plus novelist Aldous Huxley. Lemkin circulated petitions in the United States and Europe amongst political elites, celebrities, and public intellectuals. He engaged women’s organisations, labour unions, chambers of commerce, and editorial writers, all in the hope of shaping UN decisions. His was a singular performance, its energy exceeded only by its effectiveness.
Following the General Assembly vote, Lemkin threw himself into ensuring the Convention’s ratification by UN member states, requiring a minimum of 20 signatories. As during General Assembly deliberations, he petitioned, testified, orchestrated letter-writing drives, sought to mollify critics, persuade agnostics, and beseeched parliamentarians and heads of state. This campaign helped lead to the UN’s formal signing ceremony in October 1950, by which time the requisite number of instruments of ratification was deposited in New York. The Convention obtained force of international law on 12 January 1951, ‘the most beautiful day in my life’ exulted Lemkin. By 1959, the year he died, almost 60 governments had ratified the treaty. Ironically, his country of refuge proved hard to convince, despite President Harry Truman’s advocacy.
Lemkin feared that if Washington lay outside its framework, the Convention would lack prestige and vitality, consigned to limbo with other pious sounding but hollow covenants. To prevent this turn, he leapt into action with usual alacrity; but determined adversaries and Cold War circumstances conspired against him. Resistance sprang from several groups, each unsettled by the prospect of having international law legislate for the United States. White Southern Democrats counted heavily, especially their insistence upon the Constitution’s supremacy clause. They also worried aloud that the Convention would permit domestic troublemakers and foreigners—including the Soviets—to scrutinise, pontificate, and meddle in segregated Dixie, taking as points of reference random lynching and language in Article II about ‘mental harm.’ Notable in this regard were Tom Connally (D, Texas) and Alexander George (D, Georgia) of the Senate Foreign Relations Committee. They interrogated the phrase in Article II on killing of members of a group: ‘intent to destroy, in whole or in part.’ Did the violent death of one person indicate genocide? Or ten? Or a 100, 1,000, or one million? What percentage of a group? Did genocide, in fact, defy quantitative definition? In the absence of precision lay theoretical murkiness and mischief.
Upon this reasoning, the archconservative American Bar Association (ABA) elaborated. It denounced the Convention—as did Senator Bourke Hickenlooper (R, Iowa)—as trespassing on national sovereignty and inviting hostile regimes to embarrass the United States by lodging frivolous suits against Washington. If nothing else, Moscow and Maoist Beijing would wield the Convention as a cudgel to thump the United States on behalf of Afro-Americans, Native American tribes, and assorted screwballs.
Such was plainly the case, said irate Southern senators and ABA stalwarts, when in December 1951 left leaning Black activists, William Patterson and Paul Robeson, presented a petition to UN offices—We Charge Genocide—signed by W.E.B. Du Bois and others from the Civil Rights Congress. The petition enumerated thousands of racist-motivated homicides, rapes, and instances of mayhem. It detailed Jim Crow repression and pleaded for UN investigation into, and penalties against, the American government. Nothing less would relieve a people who had suffered grievously since the founding of colonial settlements: ‘Three hundred years is a long time to wait.’
To draw the sting from the affronted South, Lemkin hastened to distance himself—as had the National Association for the Advancement of Colored People (NAACP)—from Patterson and Robeson. In public print and private correspondence with Patterson, Lemkin extolled the putative virtues of gradualism as the surest corrective to racial injustice. Besides, he argued, as prospects for Senate ratification faded before Dixie fury and ABA enmity, the situation faced by Black Americans belonged to another category than that met by the victims of Ottoman malice or Hitler’s hatred: ‘Genocide implies destruction, death, annihilation, while discrimination is a regrettable denial of certain opportunities of life. To be unequal is not the same as to be dead.’ This argument left Patterson unmoved; he remained convinced that the United States constituted the most rapacious and bloody-minded society ever built. Professor Oakley C. Johnson, another signatory of We Charge Genocide, suggested that Lemkin allowed a version of exaggerated patriotism to blur his judgment of racial murders in America and was inexcusably lax in dismissing reams of documented complaint.
As White Southerners stampeded away from the Convention, other matters injurious to Senate ratification arose. For one, Lemkin and a number of allies fell out amongst themselves, most disruptively in the case of James Rosenberg, who served with the American Conference of Christians and Jews and as president of the United States Committee for a Genocide Convention. How best to counter opponents or woo undecided senators were the primary causes of disagreement. Old fashioned bigotry meanwhile attached to Lemkin, whose Jewishness, accented English, and other alien markers fed suspicion that he was weirdly exotic, probably disloyal, definitely a nuisance—more akin to Du Bois, Robeson, Patterson, and Johnson than to decent folks. Senator H. Alexander Smith (R, New Jersey), once opined, after listening to Lemkin testify on Capitol Hill, that unfortunately the ‘biggest propagandist’ for the Convention was a ‘a man who comes from a foreign country and who speaks broken English.’ The Jewish element, he grumbled, remained overly represented in the anti-genocide movement.
Hoping to burnish his American bona fides, Lemkin played unabashedly to pervasive anti-communism, never hesitating to portray Convention ratification as a potentially useful Cold War propaganda move. He also embraced as a matter of genuine conviction the cause of East European émigrés. Together with ethnic organisations—Polish, Hungarian, Czech, Lithuanian, Estonian, Latvian, and Ukrainian—he charged Soviet Russia as a genocidal syndicate: ‘Russia is killing small nations.’ Even so, with its treaty-busting representation in the Senate, the South would not budge nor the ABA bend. Lemkin complained to supporters that Dixie senators were forfeiting their chance to display compassion whilst the Convention’s opponents, playing into Josef Stalin’s hands, unwittingly abetted deportations and murder.
Adding irreparable damage to Lemkin’s crusade, the post-Truman White House withheld support from the Convention. President Dwight Eisenhower and Secretary of State John Foster Dulles declared in 1953 that they had no desire to entangle the United States in extravagant agreements. Sacrifice of the Convention, the Administration reasoned, would calm the frenzy behind the Bricker Amendment—ardently supported by Senators Robert Taft (R, Ohio) and Joseph McCarthy (R, Wisconsin) plus ABA president Frank Holman—that sought to curtail presidential ability to approve treaties. Lemkin protested vainly to Dulles.
Weakened by precarious health and other misfortune, Lemkin let his campaign for American ratification slacken in the mid-1950s. He did obtain adjunct professorial jobs at Yale and Rutgers teaching courses on international law and the UN, but landed nothing permanent. He produced works—autobiography and the history of German homicide programmes—which publishers refused because they deemed the potential readership too small for commercial viability. Just as the Institute for Advanced Study at Princeton had not found a niche for him in 1947 when he cast about for a sturdy institutional perch, so during the last year of his life the Rockefeller Foundation chose not to grant funds to aid his History of Genocide research. In applying to the Rockefeller, Lemkin gave what, unbeknown to him, amounted to a final testament of his lawyerly faith: ‘A degree of civilization by itself cannot be taken for granted as remedy against genocide. A certain help can be provided by international law appealing both to the feeling of shame and to the tendency to conform, even outwardly, to established standards.’ Increasingly ill-tempered and self-absorbed, he lived on the margins of society without consolations of intimacy or deep friendship for which he had neither knack nor interest. Yet despite adversity and crowding isolation, he never doubted his life’s mission: ‘God must have chosen me in some way to contribute what I can to humanity.’
For years, the tale of Lemkin and the Genocide Convention hardly touched public imagination in America or elsewhere. Not until November 1986 did the Senate pass a resolution making the United States party to the Convention, thanks to the Herculean effort from 1967 onward of William Proxmire (D, Wisconsin) for whom the treaty constituted a moral imperative. President Ronald Reagan’s Administration delivered the instrument of ratification to the UN, binding upon Washington as of February 1989. Thus the United States became the 98th country—Ethiopia in July 1949 being first—to ratify the Convention. This event was, at its best construction, a posthumous victory for Lemkin, his last years blighted by impecuniousness, infirmity, and veiled in obscurity. The Senate conditions in 1986 attached to the Convention, the so-called ‘Sovereignty Package,’ cast doubt at home and abroad about the seriousness of American adherence. Two years earlier, James Martin, a Holocaust denier, had published an egregious book, mocking Lemkin and ridiculing his labours.
Of Lemkin’s post-war fixations, few matched his disdain for the UDHR and its authors, specifically Eleanor Roosevelt. He had her in mind in 1949, when he attacked in private correspondence those people whose ‘confusion’ and ‘intellectual vanity’ led them to ‘prefer global generalities more than concrete realities of international life.’ He thought the UDHR high-blown rhetoric collapsible under its own flimsiness. A hortatory declaration lacking seriousness, it contributed nothing to formal code, a view shared by that day’s renowned human rights jurist, Hersch Lauterpacht of Cambridge University. To Lemkin, moreover, the UDHR was pernicious for standing at philosophical loggerheads with the Genocide Convention: the former’s emphasising individual rights versus the latter’s focus on collectivities. That Roosevelt was born to privilege, lived in comfort and safety, and enjoyed lofty status probably also nettled the scrambling Lemkin, to say nothing of his brooding that the UDHR—a confection blending sanctimony with triviality—would steal the limelight that the Convention deserved. To its champions, the UDHR was quite another matter. Upon studying the text of the UDHR passed in Paris by the General Assembly on 10 December 1948, the luminous Helen Keller declared: ‘My soul stood erect, exultant, envisioning a new world where the light of justice for every individual will be unclouded.’
References to human rights peppered the UN Charter and, in effect, Article 68 authorised ECOSOC to devise language and means to extend them. From that came instructions to Humphrey’s Human Rights Division to assist the newly established Human Rights Commission (HRC), assigned the task of devising a statement and institutional machinery of rights. Representatives of the five Security Council powers—the United States, Soviet Russia, Britain, France, and China—sat as permanent HRC members. Rotating delegates from other UN missions supplemented them: Australia, Belgium, Byelorussian SSR, Chile, Egypt, India, Iran, Lebanon, Panama, Philippines, Ukrainian SSR, Uruguay, and Yugoslavia. Elected by unanimity at the HRC’s first session, 27 January-10 February 1947, Roosevelt chaired the HRC until 1951; she also performed additional duties on America’s UN delegation, to which Truman had appointed her in December 1945. Chang Peng-chun, a polymath and leader of China’s UN delegation, became HRC vice chair; Lebanon’s Charles Malik, a philosopher-turned-diplomat and Christian humanist, was selected rapporteur.
The HRC’s core membership also came to include René Cassin of France, a Jewish member of Charles de Gaulle’s official family and discerning lawyer. Of successive Soviet representatives connected to the HRC, the most spirited was Alexi Pavlov, apologist of the impeccably democratic 1936 ‘Stalin constitution’ and a worthy opponent of Malik against whom he pressed the brief for scientific materialism. Lord Dukeston, an intellectual mediocrity but a Labour Party crony of Foreign Secretary Ernest Bevin, represented Britain. Bevin had resisted appointing Lauterpacht, perhaps because—a reasonable supposition—of his Jewish and foreign—Polish—roots and despite his having published in 1945 a pertinent book, An International Bill of the Rights of Man. Australia’s representative, Colonel William Hodgson, wanted the UDHR to have strong ‘teeth.’ Hernan Santa Cruz of Chile proved a tireless proponent for the inclusion of socioeconomic rights. Two members from newly independent Powers also played vital roles: Carlos Romulo of the Philippines and Hansa Mehta of India, the latter bringing to bear her perspective as feminist and veteran of India’s independence movement.
The HRC divided its efforts. Led by Roosevelt, one subgroup—mainly Chang, Malik, Cassin, Hodgson, and Santa Cruz—took responsibility for composing a statement on rights of the person. Running parallel to it, as originally envisioned, there would be a binding instrument of rights, the writing of which went to a second subgroup. A third was to design strategies to implement the prospective declaration and covenant.
In the case of the proposed covenant, as matters evolved, the HRC decided in 1951 to split the project in two. One was termed the ‘Covenant on Civil and Political Rights,’ corresponding roughly with liberal ideas focused on individuals conforming to the Western philosophical canon and embodied in such documents as the American Bill of Rights and France’s Déclaration des droits de l’homme et du citoyen. The second—the ‘Covenant on Economic, Social, and Cultural Rights’—stressed newer concepts associated with socialist ideals related to economic freedom and welfare. By virtue of its intended legal heft, Roosevelt reckoned each covenant difficult of obtaining General Assembly endorsement; presumably, ratification by UN member states would be rougher still. She was right. The HRC did not finish the two covenants until 1954. The General Assembly did not approve them until 1966; they came into force in 1976 with the United States delaying, as with the Genocide Convention. Anticipating such obstacles, the HRC concentrated its effort in 1947-1948 on drafting a more acceptable agreement of broad definition, christened after quibbling the ‘Universal Declaration of Human Rights.’ The ultimate aim was that a coherent set of norms and laws would inhere within these interlocking documents. Until each was finished, however, and put in place as constituent parts of an ‘International Bill of Rights,’ the UDHR would stand alone, a tangible point of moral reference for citizens and governments everywhere and pledge of better things to come.
A daunting difficulty for the UDHR authors was to devise a statement that would satisfy the ethical perspectives and intellectual traditions of the diverse UN membership, exemplified by, but not wholly encompassed in, rival Cold War ideologies. By 1948, the UN counted more than 35 states anchored in Judeo-Christian legacy, 11 in Islamic, six in Marxist, and five in Buddhist or Hindu. Not surprisingly, several observers and groups doubted the crafting of a useful declaration with genuine worldwide application.
The Executive Board of the American Anthropological Association (AAA) argued in 1947 that the most likely forthcoming declaration would insult the dignity of customs cherished since time immemorial by people residing outside the West. In themes unselfconsciously echoing Lemkin’s vandalism and barbarism, and foreshadowing latter-day attacks on the UDHR as weighted with Western conceit, the AAA enjoined the HCR against ethnocentrism. In its ‘Statement on Human Rights,’ written by Melville Herskovits, an Africanist at Northwestern University, the AAA charged that Western ideas in the past had dignified imperialism and spawned calamity for myriad persons and collectivities:
In the history of Western Europe and America … economic expansion, control of armaments, and an evangelical religious tradition have translated the recognition of cultural differences into a summons to action. This has been emphasized by philosophical systems that have stressed absolutes in the realm of values and ends. Definitions of freedom, concepts of the nature of human rights, and the like, have thus been narrowly drawn …. Doctrines of the ‘white man’s burden’ have been employed to implement economic exploitation and to deny the right to control their own affairs to millions of people over the world, where the expansion of Europe and America has not meant the literal extermination of whole populations.
The AAA urged the HRC to treat seriously all cultural forms, each a manifestation of complex psychology and its yearning to understand human purpose in a mysterious cosmos. To avert the risk of inflicting new harm, the HRC had to appreciate that individuals realised their personalities through the culture into which they were born and lived. From this perspective, it followed that the HRC must respect human differences, not drive them—inadvertently or with presumed best intentions—into sterile homogeneity. Moreover, as no hierarchy of civilisations existed, and as moral measures were relative to each culture, the HRC should proceed cautiously lest it privilege the West over the rest. Generous tolerance had to discipline unreflecting hubris.
Afro-American activists also harboured reservations about the HRC project, thinking it absurd to involve the United States or South Africa, where in 1950 apartheid took legal effect. People along a wide spectrum, from the NAACP’s tactful Walter White to firebrands like Patterson, could cite a litany of justice miscarried and identify a cataract of racial evils. Like that later mentioned in the We Charge Genocide petition, numerous infamies might cumulatively disqualify American participation in the UDHR: voter disenfranchisement in the former Confederacy, miscegenation bans that existed in 30 of 48 states, segregated housing and education, church fire-bombings, White vigilante rule, police brutality, and atrocities in 1943 Detroit and 1946 Columbia, Tennessee. Du Bois’s anxieties about American insincerity were confirmed for him in 1947: in her capacity as HRC chair, Roosevelt refused to accept or introduce for UN consideration an NAACP petition, An Appeal to the World—assembled under Du Bois’s editorial supervision—lambasting American racial practices. As the HRC explained, its remit did not extend to investigating violations charged by individuals or private associations against state actors.
A member of NAACP board of directors and plucky civil rights advocate, whose activities drew FBI monitoring and the baleful watch of Senator Theodore Bilbo (D, Mississippi), Roosevelt nonetheless balked at criticism useful to America’s Cold War rivals. Consistent with liberals in Americans for Democratic Action, of which she was a charter member, she had become immensely irritated with such fault-finding, despite her normal forbearance. She had already learnt in HRC meetings to parry Moscow’s jabs regarding American racial strife and the ‘dominance’ of the Ku Klux Klan. She steadfastly cleaved to this position, despite her mortification by the New York Waldorf-Astoria’s denial of lodging to Black UN delegates, to say nothing of slights experienced by Roosevelt’s Black compatriot in the UN and Secretariat official, Ralph Bunche. Still, she said publicly and in confidential communications with White and Du Bois, the United States, if imperfect, was making progress with more on the way, evidenced in the 1947 Truman-commissioned report: To Secure These Rights. Surely, therefore, the country need not stoke further denunciation by totalitarian regimes possessing stained rights records. Du Bois read Roosevelt’s response to the NAACP petition as proof that Truman’s diplomats would always block Afro-American presentations of grievance in international fora: nothing would come from an Administration in thrall of ‘reactionary, war-mongering colonial imperialism.’ When a conciliatory Roosevelt later asked the NAACP leadership for advice to forward to the HRC, Du Bois icily refused, leaving a flustered Walter White—at the time recruited to consult with the American UN delegation—to improvise a set of anodyne suggestions.
Another organisation in 1947 to approach the HRC, uninvited like the AAA and NAACP, came from within the UN: the United Nations Educational, Scientific, and Cultural Organisation (UNESCO), directed by the evolutionary biologist Julian Huxley. This time, though, the unsolicited ideas were buoying. Huxley assembled a study group, the Committee on the Philosophic Principles of the Rights of Man, to determine on what intellectual basis, if any, to establish an international bill of rights. The historian and erstwhile international relations theorist, E.H. Carr, chaired the committee. Richard McKeon, a talented University of Chicago philosopher, served as rapporteur. Other members included Pierre Auger, an atomic physicist at the University of Paris, and Harold Laski, a London School of Economics political scientist.
The Carr group originally hoped to canvass a diversity of thinkers, their allegiances stretching from Confucianism to Hinduism, Islam, and Christianity to contending schools of European thought. In the end, those actually solicited were of, or largely slanted toward, the West. The list of more than sixty respondents counted the Italian philosopher Benedetto Croce, British penal reformer Margery Fry, Hungarian physiologist and Nobel laureate Albert Szent-Gyorgyi, Muslim Indian poet-philosopher Humayun Kabir, American literary critic Lewis Mumford, French Jesuit and palaeontologist Pierre Teilhard de Chardin, Soviet professor of law Boris Tchechko, F.S.C. Northrop of Yale’s philosophy department, and international politics specialist Quincy Wright of the University of Chicago. The most famous respondent was Mahatma Gandhi, whose India was being swept by communal violence. The respondent most impassioned by, and intimately involved in the study, was Jacques Maritain, a French Catholic theologian and at the time ambassador to the Vatican. He later wrote an eloquent introduction to a compendium of the UNESCO essays distributed when the UDHR was still a work in progress.
Somewhat surprising to its UNESCO sponsors, the Carr-led investigation concluded that peoples of different philosophical and religious backgrounds could agree upon a workable catalogue of civil-political and economic-social rights. Despite feeling by a few members that UNESCO had tramped on turf not its own, the HRC politely received this finding stressing pragmatic convergences rather than the chimera of deep theoretical agreements.
Even whilst the AAA, NAACP, and UNESCO sought Roosevelt’s attention, she and her colleagues faced perplexities of another type: the principal drafters of the UHDR held views that did not flow in the same direction. Loyal to the China of Chiang Kai-shek, Chang argued that Confucian wisdom should not be absent from whatever was finally written. He pushed for including the venerable codes of political order and private conduct, whilst simultaneously despairing as Mao Tse-tung’s armies gained firmer grip on China; he predicted that a full-fledged Soviet-American war would erupt by autumn 1949. Of decidedly secular-pluralist bent, Chang also sparred with Malik over the essence of human nature—immutability like ‘original sin’ versus protean adjustments mediated by civilisations located in scattered times and places. Malik and Cassin disagreed over Palestinian-Israeli affairs. An Arab League spokesman, Malik protested Palestinian dispossession and dispersal. Cassin, once hounded by Nazi and Vichy pursuers, and whose sister and other members of his extended family had died in the Shoah, believed that new Israel held the key to Jewish rejuvenation. As for Roosevelt, she was an astute and pre-eminently fair chair, as well as in her phrase a ‘practical idealist.’ By her own admission, however, without a rudimentary university education, she was ill at ease as her theoretically versed colleagues spun intellectual cobwebs or disputed arcane points. Lest the drafting committee crumble beneath inconclusive argumentation, rent by disagreements over Middle East dilemmas, or paralyzed by a clash of resounding egos, Roosevelt decided to sub-contract the writing of the UDHR’s first draft. This task fell to Humphrey and his Division of Human Rights aides, hitherto seconded to the HCR but not assigned primary roles.
A former professor of law at McGill University and unswerving social democrat, Humphrey was also superficially self-effacing, as befit a UN civil servant. He completed a draft declaration in winter 1947 after studying hundreds of suggested texts. Submitted by Western organisations and individuals, these included Lauterpacht, the American Law Institute, the American Association for the United Nations, the American Jewish Congress, Latin American socialists, and the Institut de droit international. Humphrey’s annotated draft listed 48 articles and upheld the significance of economic-social rights as no way inferior to civil-political ones.
Shortly after Humphrey’s document reached the HRC drafting committee, Cassin received instructions to review, streamline, and polish. He did so, leaving the core—75 percent—of Humphrey’s work intact. Thereafter, in long-running meetings and consulting UN delegations, the entire HRC debated concepts, haggled over the precise meaning of phrases, drafted and re-drafted provisions, and careened between imploding and going grimly forward. Roosevelt, never querulous or abrupt, kept disruption from swamping the HRC. As finally propounded, the UDHR was sufficiently elastic to accommodate a broad spectrum of ideological preferences. It was rhetorically elegant, enshrined key principles connected to the democratic West and collectivist East, and could even be read as manifesto for emergent national welfare states. To the generation that first read it, the UDHR was also a tribute to compromise, timely at a moment when Soviet-American tensions ran high, particularly over Berlin. Above all, by virtue of being a declaration rather than a legal instrument, the UDHR was not an obvious threat to anyone or any country.
Delegations of 48 UN states voted in support of the UDHR with none opposed. The delegates of two countries were absent from the proceedings: Honduras and Yemen. Eight delegations, however, did ostentatiously abstain: Byelorussia, Czechoslovakia, Poland, Saudi Arabia, Ukraine, Soviet Russia, South Africa, and Yugoslavia. The Soviet Bloc members and Marxist Yugoslavia—defiant in 1948 of Stalinist dictates—abstained because the UDHR failed to mention fascism and Nazism as the main enemies of decency and, consistent with naïve liberalism, allowed political space for their recrudescence. Moreover, as Vyshinsky expounded, proletarian lands by virtue of having overcome class injustice and conflict exemplified human rights in action; in this circumstance, the workers’ states were actually co-terminus with—and the primary agents and guarantors of—human rights, in which case the UDHR was superfluous. From a Saudi perspective, the UDHR position on equality of marriage rights and freedom to change religion invited licentiousness and apostasy, both inconsistent with Islamic society and redolent of Crusader imperiousness. To bolster White prerogatives and budding apartheid, South Africa’s delegates challenged the UDHR as insufficiently alive to the qualifications required of citizens to move within national territory or participate conscientiously in politics. Of course, eight abstentions hardly constituted defeat. The General Assembly tally delighted Roosevelt, in attendance, and the rest of the HRC. After announcing the results, General Assembly President Herbert Evatt lauded Roosevelt. His words triggered a standing ovation amongst UN representatives. Other congratulations flooded in, including from the White House.
However much Roosevelt appreciated the UN approbation, she perceived the UDHR in 1948 as the start, not the finish, of human rights affirmation: much depended upon the substance and adoption of political-civil and social-economic covenants whose path the UDHR was to prepare. To this cause, she devoted herself for the remainder of her UN tenure. Yet completion of the proposed International Bill of Rights proved elusive. She died in 1962, years before the UN or United States endorsed the two covenants.
Roosevelt seethed as the same elements that thwarted American ratification of the Genocide Convention blocked progress beyond the UDHR: Dixiecrats, ABA leaders, UN defamers, guardians of the equipoise between federal authority and the constituent states, and Eisenhower-Dulles caution. Charging the pending covenants as a stalking horse for communists and other subversives, the opposition counselled rejection. The UN was arrogating so much power to itself that American independence must finally vanish, before which horrid day, warned Senator John Bricker (R, Ohio), the country would become ensnared in a Moscow-dictated ‘Covenant on Human Slavery.’
Roosevelt sighed in her April 1953 My Day column: ‘We have sold out to the Brickers and McCarthys.’ By that time, Eisenhower had replaced her on the HRC with an appointee of contrasting sensibility and lesser competence, Mary Pillsbury Lord. Lord at first laboured under the misimpression that the United States had rejected the UDHR because its emphasis on social-economic rights was lopsided and contradicted American ideals. In the meantime, international dangers had intensified beyond those of 1948, further postponing the future for which Roosevelt campaigned: the nuclear arms race had accelerated, communists had taken power in China, and the Korean War was underway.
Liberals circa 1948 were disappointed that the HRC did not tilt the UDHR more sharply away from the prerogatives of states in favour of the individual’s welfare and dignity. These critics downplayed the upholding of nations’ sovereignty in the UN Charter—Article 2.7—and emphasised its several warm references to human rights. Pre-eminent in this party, Lauterpacht wrote scathingly of the UDHR ‘scrupulously’ avoiding references to states’ obligations and the absence of mechanisms to enforce people’s rights. He regretted, too, that the UDHR made no provision for private persons or organisations to petition the UN—as the NAACP attempted in 1947—for redress against violators. How disappointing also that the UDHR failed to address the protection or support of linguistic, racial, and religious minorities. Lauterpacht’s only concession was that UDHR inadequacies might become so obvious that new initiatives would arise in the UN or elsewhere to correct the glaring defects: ‘The realization of the ineffectiveness of the Declaration per se must tend to quicken the pace of less nominal measures for the protection of human rights.’ To such complaints, Roosevelt and Humphrey tartly replied that the HRC had to prevent perfectionism from subverting the achievable within the context of stubborn political realities.
Of Americans contemporaneous with Lauterpacht, and comparably sceptical of the UDHR, two were particularly withering: the revolutionary humanist, Du Bois, and the contrarian, George Kennan. Sympathetic to Stalin—’few men in the twentieth century approach his stature’—and offended by Truman—’ranks with Adolf Hitler as one of the greatest killers of our day’—Du Bois recoiled at the UDHR’s saturation with European-North American claims to virtue. Such speciousness could not redeem the past or mould a desirable future. The case stood stark: ‘There was no Nazi atrocity—concentration camps, wholesale maiming and murder, defilement of women or ghastly blasphemy of childhood—which the Christian civilization of Europe had not long been practicing against colored folk in all parts of the world.’ Kennan, a State Department architect of Cold War strategy, and intellectually far removed from Du Bois’s passions thought the UDHR too ambitious for the American polity:
[I have] great misgivings as to the wisdom of … negotiating declarations of this nature setting forth ideals and principles which we are not today able to observe in our own country, which we cannot be sure of being able to observe in the future, and which are in any case of dubious universal validity. It seems … that this invites charges of hypocrisy against us.
Better, he advised his superiors, to forswear highly pitched proclamations unconnected to either American society or the unforgiving global competition for power.
African and Asian champions of decolonisation from 1948 onward regretted UDHR silence on national self-determination, even as they summoned its moral authority—as at the 1955 Bandung conference of nonaligned countries—in anti-imperialism and liberation struggles. Explicit reference to the need of economic development and modernisation was also missing from the UDHR, complained many first-generation leaders of developing states. Not until 1986 did the UN General Assembly adopt the ‘Declaration on the Right to Development,’ integral to a proposed New International Economic Order—unimagined by the authors of the UDHR, though not as remote an idea to them as would have been rights language referring to gay, lesbian, or transgender persons. Such lacunae were hardly surprising said African and Asian critics: for them, the UDHR was larded with Western ideas and thinly veiled interests. Chang and Malik, so ran the argument, were themselves members of Westernised elites, severed from their natal traditions and, consciously or not, helping to effect a suffocating uniformity of cultures. How contemptible, some thought during the Algerian war of independence, that Cassin, then president of the Conseil d’Etat, uttered not a word against notorious internment centres, where torture was commonplace or about other French misdeeds. Subsequent Western sermonising on moral-political failings in various African and Asian settings—focused on alleged corruption or tyrannies of the 1970s Ugandan Idi Amin-type—did not advance adherence to UDHR norms. It instead provoked charges of double standard and, like the 2001 Dublin conference, calls for reparations for past sins against the global south: slavery, colonialism, and genocide. In tune with Du Bois’s earlier excoriation, an Indian scholar, Arvind Sharma, noted in 2006 the West’s tendency to bask in its own moral self-approval: ‘Human rights discourse will continue to attract the charge of being ‘Western’ until it faces up to the question of the righting of historical wrongs.’
Despite these and other doubts, the UDHR has demonstrated a tenacity of life, moving gradually into the realm of customary law. Although Roman Catholic observers at the moment of the UDHR’s unveiling wondered about the document’s failure to mention God or the divinely ordained nature of the moral sphere, these qualms were dispelled when Pope John XXIII issued Pacem in Terris at Easter 1963. Like the ecumenical World Council of Churches earlier, Pacem hailed the UDHR as a step toward the sane re-design of world society and a solemn affirmation of the worth of all human beings. That same year, at the behest of Jomo Kenyatta of Kenya, Kwame Nkrumah of Ghana, and Julius Nyerere of Tanzania, the Organisation of African Unity wove adherence to the UDHR into its charter. Similar favourable references wended their way into constitutions of newly independent states, from Indonesia to northern and sub-Saharan Africa. Testimonials indicate, too, that oppositionists in South Africa, Eastern Europe, Franco Spain, and Soviet Russia recited UDHR principles to gain support from abroad and within their own lands. The UDHR also sustained the morale of the beleaguered, as Nelson Mandela, South Africa’s anti-apartheid leader, once explained. Resisters were not alone but lived in solidarity with strugglers elsewhere pitted against varieties of injustice. In effect, the UDHR was an aspirational document, radiating transcultural values and enabling activists to leap the political obstacles emplaced by Moloch states to frustrate unwanted legal probes and enforcement.
On its twentieth anniversary, when conferring its Peace Prize on Cassin, the Nobel Committee likened the UDHR as comparable to the Ten Commandments in shaping ethics and conduct. World leaders, religious figures, celebrated writers, and unbowed dissenters likewise celebrated the UDHR’s 1998 golden anniversary. Mary Robinson, the UN High Commissioner for Human Rights, spoke for most when she called it a landmark document in world history. Similar homage was paid by Kofi Annan, the UN secretary general, Aung San Suu Kyi, the Burmese activist, the Dalai Lama, and a range of politicians like the British prime minister, Tony Blair, former Soviet leader, Mikhail Gorbachev, and Vaclav Havel, the Czech dissident turned statesman.
Surviving almost miraculously the Cold War’s vicissitudes, the UDHR helped inspire improvement in the 1950s and beyond, tangible in conventions relating to refugees (1951), status of women (1952), treatment of prisoners (1955), elimination of racial discrimination (1965), and rights of children (1989). Non-governmental organisations such as Amnesty International and Human Rights Watch also employed UDHR language to buttress their missions. The UN’s heralded twenty-first century initiative, ‘Responsibility to Protect’ [R2P], is also partly traceable to the UDHR, the idea being that the world community should act to safeguard any civilian population endangered by an abusive government via mediation, economic sanction, diplomacy, or, in last resort with UN Security Council approval, intervention with military force.
The authors of R2P hoped to check regimes guilty of perpetrating atrocities, specifically war crimes, crimes against humanity, ethnic cleansing, and—back to Lemkin—genocide. Indeed, the Genocide Convention and the UDHR, encapsulated by R2P, are two sides of the same human rights coin: the Roosevelt side earnestly hopeful, the Lemkin side a prohibition on infernal policies. The General Assembly decision in December 1948 to circulate this new currency reflected indignation with reason-of-state doctrine, its legitimacy besmirched by a world war that routinely targeted defenceless civilians. Institutionalisation of anti-state feeling certainly did not progress fast enough to satisfy critics. But the 2002 establishment of the International Criminal Court (ICC) at The Hague to provide impartial evaluation of political leaders charged with offenses, including genocide, may have satisfied those earlier troubled by the ‘victors’ justice’ of Nuremberg. The ICC could even have gratified Lauterpacht as a place where, in words he once used in another context, ‘the mystical sanctity of the sovereign State … is arraigned before the judgment of the law.’ Thus, although not at once but eventually, a thickening of dedication arose after 1945—prominently the Council of Europe—against political regimes previously sheltered by ancient writ upholding the internal arrangements of a state as exclusively its own affair.
As Europe’s age of catastrophe passed into history, finalised by the extinction of Marxist-Leninist regimes in 1989-1991, the American record remained exposed. An example was White House condoned-directed use of ‘enhanced interrogation techniques’—against terrorist suspects during the panic years following the 9/11 attacks—contra UDHR Article Five: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment, or punishment.’ In domestic affairs, meantime, despite President Barack Obama’s incumbency, the ‘routine disadvantage’ of being Black remained. This stubborn fact would doubtless have disheartened Patterson and Du Bois. Even if they persisted in viewing the UDHR as deficient, they could have cited—as they did in their lifetimes—its articles against entrenched wrongs in the United States. The ‘Double V’ of 1941-1945, victory against fascism abroad and racism at home, remained unfinished business into the twenty-first century.
As for Lemkin, American by necessity, what might he have thought of the career of his genocide idea, both as analytical concept and protest against types of violence that have shattered countless lives? Promiscuous use of the word in popular parlance would certainly have vexed him, threatening to trivialise the term’s power to register outrage and tarnishing its status in theory and law. Whatever its shortcomings as perceived by Lemkin, this concern is plainly suggested by his response to Patterson’s We Charge Genocide that was far more serious than numerous instances in which genocide has been casually used in subsequent decades. Conversely, despite pride of authorship, Lemkin would have approved attempts by other thinkers to theorise genocide further, though not necessarily agreeing with their every amendment.
One can imagine the satisfaction Lemkin might have felt had he learnt—no evidence suggests that he did—of considered comments by Roosevelt in 1948 that referred to German kidnapping of Polish children with ‘Aryan’ traits and deportation to the Third Reich: ‘a dreadful kind of genocide.’ Nor, incidentally, did he acknowledge her publically expressed support in 1950 for Senate approval of the Genocide Convention, though privately he must have felt pleased. Had he lived into the 1960s, Lemkin would have had to contend with those protestors of the Vietnam War who labelled American military policies as genocidal. At that time, involved in the 1967 Stockholm ‘trials’ of American military-civilian leaders, Jean-Paul Sartre conjured Lemkin. Taking him as reference, Sartre declared Washington guilty of committing genocide in Vietnam: torching villages, subjecting civilian populations to heavy bombing, killing livestock, destroying vegetation and crops by defoliants, and shooting indiscriminately.
How Lemkin would have reacted to Sartre’s rehearsal of accusations remains a matter of conjecture, his visceral anti-communism pulling in one direction, his horror of unbridled violence in another. Less open to doubt would be Lemkin’s reading of events in Bangladesh, Biafra, Bosnia, Burundi, Cambodia, Darfur, Rwanda, or Tibet. At minimum, they would find treatment in his projected History of Genocide. Lemkin, then, would have acknowledged the continuing relevance of words that he penned during the 1948 upheavals in India: ‘There is too much genocide in the world today. We cannot afford to be lulled to sleep on this burning question.’ He meanwhile would have been impressed that the Genocide Convention, albeit unevenly applied and debated by law scholars and historians, came to occupy the centre of discourse about mass murders, methods to deter them, and means to bring genocidaires to justice. Indeed, like the UDHR, Lemkin’s Convention outlived the anxious watches of the Cold War night, lingering still in legal-ethical thought and occasional action.