How the terms ‘genocide’ and ‘crimes against humanity’ came to be.
A NEW BOOK EXPLORES THE ORIGIN OF TWO TERMS CENTRAL TO 20TH- CENTURY HISTORY: ‘GENOCIDE’ AND ‘CRIMES AGAINST HUMANITY’
On Nov. 17, the Cundill Prize in Historical Literature at McGill will be awarded to the author of a book “determined to have had (or likely to have) a profound literary, social and academic impact in the area of history.” This week, the National Post is publishing excerpts from all six 2016 Cundill Prize long listed books.
Alittle after three o’clock on an October afternoon in 1946, a wooden door behind the defendants’ dock slid open and Hans Frank entered courtroom 600. He wore a grey suit, a shade that was offset by the white helmets worn by the two sombre- faced military guards, his escorts. The hearings had taken a toll on the man who had been Adolf Hitler’s personal lawyer and then personal representative in German-occupied Poland, with his pink cheeks, sharp little nose and slicked- back hair. Frank was no longer the slender and swank minister celebrated by his friend Richard Strauss. Indeed, he was in a considerable state of perturbation, so much so that as he entered the room, he turned and faced the wrong direction, showing his back to the judges.
Sitting in the packed Nuremberg courtroom that day was the professor of international law at Cambridge University. Balding and bespectacled, Hersch Lauterpacht perched at the end of a long wooden table, round as an owl, flanked by distinguished colleagues on the British prosecution team. Seated no more than a few feet from Frank, in a black suit, Lauterpacht was the one who came up with the idea of putting the term “crimes against humanity” into the Nuremberg statute, three words to describe the murder of four million Jews and Poles on the territory of Poland. Lauterpacht would come to be recognized as the finest international legal mind of the 20th century and a father of the modern human rights movement, yet his interest in Frank was not just professional. For five years, Frank had been governor of a territory that included the city of Lemberg, where Lauterpacht had a large family, including his parents, a brother and sister, and their children. When the trial had opened a year earlier, their fate in the kingdom of Hans Frank was unknown.
Another man with an interest in the trial was not there that day. Rafael Lemkin listened to the judgment on a wireless, from a bed in an American military hospital in Paris. A public prosecutor and then a lawyer in Warsaw, he fled Poland in 1939, when the war broke out, and eventually reached America. There he worked with the trial’s American prosecution team, alongside the British. On that long journey he carried a number of valises, each crammed with documents, among them many decrees signed by Frank. In studying these materials, Lemkin found a pattern of behaviour to which he gave a label, to describe the crime with which Frank could be charged. He called it “genocide.”
Unlike Lauterpacht, with his focus on crimes against humanity, which aimed at the protection of individuals, Lemkin was more concerned with the protection of groups. He had worked tirelessly to get the crime of genocide into Frank’s trial, but on this last day of the trial he was too unwell to attend. He too had a personal interest in Frank: he had spent years in Lwów, and his parents and brother were caught up in the crimes said to have been committed on Frank’s territory.
“Defendant Hans Frank,” the president of the tribunal announced. Frank was about to learn whether he would still be alive at Christmas, in a position to honour the promise he had recently made to his seven- year- old son, that all was fine and he would be home for the holiday. Sixty-eight years later, in the fall of 2014, I visited courtroom 600 in the company of Hans Frank’s son Niklas, who was a small boy when that promise was made.
Niklas and I began our visit in the desolate, empty wing of the disused prison at the rear of the Palace of Justice, the only one of the four wings that still stood. We sat together in a small cell, like the one in which his father spent the best part of a year. The last time Niklas had been in this part of the building was in September 1946. “It’s the only room in the world where I am a little bit nearer to my father,” he told me, “sitting here and thinking of being him, for about a year being in here, with an open toilet and a small table and a small bed and nothing else.” The cell was unforgiving, and so was Niklas on the subject of his father’s actions. “My father was a lawyer; he knew what he did.”
Courtroom 600, still a working courtroom, was not greatly changed since the time of the trial. Back in 1946, the route from the cells required each of the 21 defendants to travel up a small lift that led directly to the courtroom, a contraption that Niklas and I were keen to see. It remained, behind the dock at which the defendants sat, entered through the same wooden door, which slid open as noiselessly as ever. “Open, shut, open, shut,” wrote R. W. Cooper of The Times of London, the former lawn tennis correspondent who reported each day on the trial. Niklas slid the door open and entered the small space, then closed the door behind him.
When he came back out, he made his way to the place where his father sat during the trial, charged with crimes against humanity and genocide. Niklas sat down and leaned forward on the wooden rail. He looked at me, then around the room, and then he sighed. I had often wondered about the last time his father passed through the lift’s sliding door and made his way to the defendants’ dock. It was something to be imagined and not seen, because cameras were not allowed to film the last afternoon of the trial, on Tuesday, Oct. 1, 1946. This was done to protect the dignity of the defendants.
Niklas interrupted my thoughts. He spoke gently and firmly. “This is a happy room, for me, and for the world.”
Niklas and I were together in courtroom 600 because of an invitation I had unexpectedly received several years earlier. It came from the law faculty of the university in the city now known as Lviv, an invitation to deliver a public lecture on my work on crimes against humanity and genocide. They asked me to talk about the cases in which I’d been involved, about my academic work on the Nuremberg trial, and about the trial’s consequences for our modern world.
I had long been fascinated by the trial and the myths of Nuremberg, the moment in which it was said our modern system of international justice came into being. I was mesmerized by odd points of detail to be found in the lengthy transcripts, by the grim evidence, drawn to the many books and memoirs and diaries that described in forensic detail the testimony that was laid before the judges. I was intrigued by the images, the photographs and black- and- white newsreels and movies like Judgment at Nuremberg, the 1961 Oscar winner made memorable by its subject and Spencer Tracy’s momentary flirtation with Marlene Dietrich. There was a practical reason for my interest, because the trial’s influence on my work had been profound: the Nuremberg judgment blew a powerful wind into the sails of a germinal human rights movement. Yes, there was a strong whiff of “victor’s justice,” but there was no doubting that the case was catalytic, opening the possibility that the leaders of a country could be put on trial before an international court, something that had never happened before.
Most likely it was my work as a barrister, rather than my writings, that prompted the invitation from Lviv. In the summer of 1998, I had been peripherally involved in the negotiations that led to the creation of the International Criminal Court ( ICC), at a meeting in Rome, and a few months later I worked on the Pinochet case in London. The former president of Chile had claimed immunity from the British courts for charges of genocide and crimes against humanity laid against him by a Spanish prosecutor, and he had lost. In the years that followed, other cases allowed the gates of international justice to creak open, after a period of quiescence in the Cold War decades that followed the Nuremberg trial.
Cases from the former Yugoslavia and Rwanda soon landed on my desk in London. Others followed, relating to allegations in the Congo, Libya, Afghanistan, Chechnya, Iran, Syria and Lebanon, Sierra Leone, Guantánamo and Iraq. The long and sad list reflected the failure of good intentions aired in Nuremberg’s courtroom 600.
I became involved in several cases of mass killing. Some were argued as crimes against humanity, the killings of individuals on a large scale, and others gave rise to allegations of genocide, the destruction of groups. These two distinct crimes, with their different emphases on the individual and the group, grew side by side, yet over time genocide emerged in the eyes of many as the crime of crimes, a hierarchy that left a suggestion that the killing of large numbers of people as individuals was somehow less terrible. Occasionally, I would pick up hints about the origins and purposes of the two terms and the connection to arguments first made in courtroom 600. Yet I never enquired too deeply as to what had happened at Nuremberg. I knew how these new crimes had come into being, and how they subsequently developed, but little about the personal stories involved, or how they came to be argued in the case against Hans Frank. Nor did I know the personal circumstances in which Hersch Lauterpacht and Rafael Lemkin developed their distinct ideas.
The invitation from Lviv offered a chance to explore that history.
THE HEARINGS HAD TAKEN A TOLL ON THE MAN WHO HAD BEEN ADOLF HITLER’S PERSONAL LAWYER AND REPRESENTATIVE IN GERMAN- OCCUPIED POLAND.