In the Footsteps of Raphael Lemkin

In the Footsteps of Raphael Lemkin Michael J. Bazyler Professor of Law and ‘‘1939’’ Club Law Scholar in Holocaust and Human Rights Studies, Whittier Law School; Distinguished Visiting Professor of Law, Pepperdine University School of Law (2007) When Raphael Lemkin invented the word ‘‘genocide’’ in 1944, he explained that this is a ‘‘new word, coined by the author to denote an old practice in its modern development.’’1 As Lemkin wrote these words, the paradigmatic genocide, the Holocaust, was raging in Europe. Since Lemkin was a lawyer, he put great weight on both national and international legal rules as one of the best tools to prevent and eventually eradicate this ‘‘old practice.’’ His response was to propose an international crime for which individuals committing such acts against a group of people—whom he labeled ‘‘a collectivity’’—could be punished, irrespective of national boundaries. In effect, Lemkin was proposing the now-accepted rule of universal jurisdiction, whereby individuals committing certain heinous crimes are considered hostis humani generis—enemies of all humankind—and can be prosecuted by any national or international court, regardless of where the crime was committed.2 It is the legalistic background of the inventor and the purpose for which the term was invented—to make certain group behavior an international crime recognized by the community of nations as illegal through a multilateral treaty—that put the term ‘‘genocide’’ solidly within a legal framework. The culmination of Lemkin’s work during his lifetime was the Convention on the Prevention and Punishment of the Crime of Genocide (UNCG), adopted by the UN General Assembly in 1948 and entering into force in 1951. More than 130 states today are parties to the UNCG, in whose article 1 they solemnly ‘‘undertake to prevent and punish’’ genocide.3 How states are to do so is left unstated in the treaty. Though Lemkin died impoverished and in relative obscurity in 1959, his word has achieved a recognition beyond his dreams. ‘‘Genocide’’ has now become synonymous with extreme evil and, as noted by William Schabas, the ‘‘crime of crimes.’’4 A Google search today yields more than 26 million entries for the term. Unfortunately, one of the major reasons for its widespread popularity is the failure of the UNCG to prevent repeated occurrences of this particular extreme evil. While the term ‘‘genocide’’ should by now be relegated to descriptions of historical events, most recently the Holocaust, it is instead still being used by those who followed Lemkin to describe current events. As explained by Gregory Stanton, When the Genocide Convention was passed by the United Nations in 1948, the world said, ‘‘Never again.’’ But the history of the twentieth century instead proved that ‘‘never again’’ became ‘‘again and again.’’ The promise the United Nations made was broken, as again and again, genocides and other forms of mass murder killed 170 million people, more than all the international wars of the twentieth century combined.5 As I write this commentary, a genocide is raging in the Darfur region of Sudan while the international community, in ‘‘Keystone Kops’’ fashion, haplessly tries to figure out how to respond to the events. Despite massive demonstrations, Michael J. Bazyler, ‘‘In the Footsteps of Raphael Lemkin.’’ Genocide Studies and Prevention 2, 1 (April 2007): 51–56. ß 2007 Genocide Studies and Prevention. letter-writing campaigns to politicians, public appeals, and extensive coverage by the media, the genocide in Darfur continues unabated. As Jerry Fowler recently explained in a more elegant manner, Darfur adds another sad chapter of irony in the convention’s history, given the dramatic incongruity between the sense of urgency that one might expect a plausible case of ongoing genocide to engender and the relatively lackadaisical international political response that has in fact unfolded.6 The failure of the international community to stop the Rwandan genocide of 1994, during which approximately one million victims were murdered over a period of 100 days, provides another sad and sorry example of the ‘‘again and again’’ phenomenon. As we approach the half-century mark of Lemkin’s death, it is a great blot on both international law and international diplomacy that we have failed miserably to make his dream into reality and relegate...