Chapter IX: "Genocide" (Section III)
II. TECHNIQUES OF GENOCIDE IN VARIOUS FIELDS (Previous section)
III. RECOMMEDATIONS FOR THE FUTURE (This section)
The above-described techniques of genocide represent an elaborate, almost scientific, system developed to an extent never before achieved by any nation. (50) Hence the significance of genocide and the need to review international law in the light of the German practices of the present war. These practices have surpassed in their unscrupulous character any procedures or methods imagined a few decades ago by the framers of the Hague Regulations. Nobody at that time could conceive that an occupant would resort to the destruction of nations by barbarous practices reminiscent of the darkest pages of history. Hence, among other items covered by the Hague regulations, there are only technical rules dealing with some (but by no means all) of the essential rights of individuals; and these rules do not take into consideration the interrelationship of such rights with the whole problem of nations subjected to virtual imprisonment.
The Hague Regulations deal also with the sovereignty of a state, but they are silent regarding the preservation of the integrity of a people. However, the evolution of international law, particularly since the date of the Hague Regulations, has brought about a considerable interest in national groups as distinguished from states and individuals. National and religious groups were put under a special protection by the Treaty of Versailles and by specific minority treaties, when it became [p. 91] obvious that national minorities were compelled to live within the boundaries of states ruled by governments representing a majority of the population. The constitutions which were framed after 1918 also contain special provisions for the protection of the rights of national groups. Moreover, penal codes which were promulgated at that time provide for the protection of such groups, especially of their honor and reputation.
This trend is quite natural, when we conceive that nations are essential elements of the world community. The world represents only so much culture and intellectual vigor as are created by its component national groups (51) Essentially the idea of a nation signifies constructive cooperation and original contributions, based upon genuine traditions, genuine culture, and a well-developed national psychology. The destruction of a nation, therefore, results in the loss of its future contributions to the world. Moreover such destruction offends our feelings of morality and justice in much the same way as does the criminal killing of a human being: the crime in the one case as in the other is murder, though on a vastly greater scale. Among the basic features which have marked progress in civilization are the respect for and appreciation of the national characteristics and qualities contributed to world culture by the different nations - characteristics and qualities which, as illustrated in the contributions made by nations weak in defense and poor in economic resources, are not to be measured in terms of national power and wealth.
As far back as 1933, the author of the present work submitted to the Fifth International Conference for the Unification of Penal Law, held in Madrid in October of that year in cooperation with the Fifth Committee of the League of Nations, a report accompanied by draft articles to the effect that actions aiming at the destruction and oppression of populations (what would amount to the actual conception of genocide) should be penalized. The author formulated two new international law crimes to be introduced into the penal legislation of the thirty-seven participating countries, namely, the crime of barbarity, conceived as oppressive and destructive actions directed against individuals as members of a national, religious, or racial group, and the crime vandalism, conceived as malicious destruction of works of art and culture because they represent the specific creations of the genius of such groups. Moreover, according to this draft these new crimes were to be internationalized to the extent that the offender should be punished when apprehended, either in his own country, if that was the situs of the crime, or in any other signatory, if apprehended there. (52) [p.92]
This principle of universal repression for genocide practices
advocated by the author at the above-mentioned conference, had it been
accepted by the conference and embodied in the form of an international
convention duly signed and ratified by the countries there represented
in 1933, would have made it possible, as early as that date, to indict
persons who had been found, guilty of such criminal acts whenever they
appeared on the territory of one of the signatory countries. Moreover,
such a project, had it been adopted at that time by the participating
countries, would prove useful now by providing an effective instrument
for the punishment of war criminals of the present world conflict. It
must be emphasized again that the proposals of the author at the Madrid
Conference embraced criminal actions which, according to the view of
the author, would cover in great part the fields in which crimes have
been committed in this war by the members of the Axis Powers. Furthermore,
the adoption of the principle of universal repression as adapted to
genocide by countries which belong to the group non-belligerents or
neutrals, respectively, would likewise bind these latter countries to
punish the war criminals engaged in genocide or to extradite them to
the countries in which these crimes were committed. If the punishment
of genocide practices had formed a part of international law in such
countries since 1933, there would be no necessity now to issue admonitions
to neutral, countries not to give refuge to war criminals.
It will be advisable in the light of these observations
to consider the place of genocide in the present and future international
law. Genocide is, as we have noted, a composite of different acts of
persecution or destruction. Many of those acts, when they constitute
an infringement upon, honor and, rights, when they are a transgression
against life, private property and religion, or science and art, or
even when they encroach unduly in the fields of taxation and personal
services, are prohibited by Articles 46, 48, 52, and 56 of the Hague
Regulations. Several of them, such as those which cause, humiliations,
debilitation by undernourishment, and danger to health, are in violation
of the laws of humanity as specified in the preamble to the Hague Regulations.
But other acts falling within the purview of genocide, such as, for
example, subsidizing children begotten by members of the armed forces
of the occupant and born of women nationals of the occupied area, as
well as various ingenious measures for weakening or destroying political,
social, and cultural elements in national groups, are not expressly
prohibited by the Hague Regulations. The entire problem of genocide
needs to be dealt with as a whole; it is too important to be left for
piecemeal discussion and solution in the future. Many hope that there
will be no more wars, but we dare not rely on mere hopes for protection
against genocidal practices by ruthless conquerors. Therefore, without
ceasing in our endeavors to make this the [p. 93] last war, we must
see to it that the Hague Regulations are so amended as expressly to
prohibit genocide in any war which may occur in the future. De lege
ferenda, the definition of genocide in the Hague Regulations thus
amended should consist of two essential parts, in the first should be
included every action infringing upon the life, liberty, health, corporal
integrity, economic existence, and the honor of the inhabitants when
committed because they belong to a national, religious, or racial group;
and in the second, every policy aiming at the destruction or the aggrandizement
of one of such groups to the prejudice or detriment of another.
Moreover, we should not overlook the fact that genocide is a problem not only of war but also of peace. It is an especially important problem for Europe, where differentiation in nationhood is so marked that despite the principle of political and territorial self-determination, certain national groups may be obliged to live as minorities within the boundaries of other states. If these groups should not be adequately protected, such lack of protection would result in international disturbances, especially in the form of disorganized emigration of the persecuted, who would look for refuge elsewhere. (54) That being the case, all countries must be concerned about such a problem, not only because of humanitarian, but also because of practical, reasons affecting the interest of every country. The system of legal protection of minorities adopted in the past, which was based mainly on international treaties and the constitutions of the respective countries, proved to be inadequate because not every European country had a sufficient judicial machinery for the enforcement of its constitution. It may be said, in fact, that the European countries had a more efficient machinery for enforcing civil and criminal law than for enforcing constitutional law. Genocide being of such great importance, its repression must be based not only on international and constitutional law but also on the criminal law of the various countries. The procedure to be adopted in the future with respect to this should be as follows:
An international multilateral treaty should provide for
the introduction, not only in the constitution but also in the criminal
code of each country, of provisions protecting minority groups from
oppression because of their nationhood, religion, or race. Each criminal
code should have provisions inflicting penalties for genocide practices.
In order to prevent the invocation of the plea of superior orders, the
liability of persons who order genocide practices, as well
as of persons who execute such orders, should be provided expressly
by the criminal codes of the respective countries. Because of the special
implications of genocide in international relations, the principle of
universal re- [p. 94] pression should be adopted for the crime of genocide.
According to this principle the culprit should be liable to trial not
only in the country in which he committed the crime, but also, in the
event of his escape therefrom, in any other country in which he might
have taken refuge. (55) In this respect, genocide offenders should be
subject to the principle of universal repression in the same way as
other offenders guilty of so-called delicta juris gentium (such
as, for example, white slavery and trade in children, piracy, trade
in narcotics and in obscene publications, and counterfeiting of money).
(55) Indeed, genocide should be added to the list of delicta juris
Genocide as described above presents one of the most complete
and glaring illustrations of the violations of international law and
laws of humanity. In its several manifestations genocide also represents
a violation of specific regulations of the Hague Convention such as
those regarding the protection of life, liberty, and honor. It is therefore
essential that genocide procedures be not only prohibited by law but
prevented in practice military occupation.
In another important field, that of the treatment of prisoners
of war, international controls have been established in order to ascertain
wether prisoners are treated in accordance with the rules of international
law (see Articles 86 to 88 of the Convention concerning the Treatment
of prisoners of War, of July 27, 1929). (58) But the fate of nations
in prison, of helpless women and children, has apparently not seemed
to be so important as to call for supervision of the occupational authorities.
Whereas concerning prisoners of war the public is able to obtain exact
information, the lack of direct witness reports on the situation of
groups under occupation gravely hampers measures for the assistance
and rescue from what may be inhumane and intolerable conditions. Information
and reports which slip out from behind the frontiers of occupied countries
are very often labeled as untrustworthy atrocity stories because they
are so gruesome that people simply refuse to believe them. Therefore
the Regulations of the Hague Convention should be modified in include
an international controlling agency vested with specific powers, such
as visiting the occupied countries and making inquiries as to the manner
in which the occupant treats nations in prison. In the situation as
it exists at present there is no means of providing for alleviation
of the treatment of populations under occupation until [p.
95] the actual moment of liberation. It is then too late
for remedies, for after liberation such populations can at best obtain
only reparation of damages but never restoration of those values which
have been destroyed and which cannot be restored, such as human life,
treasures of art, and historical archives.
(50) "No conqueror has
ever chosen more diabolical methods for gaining the mastery of the soul
and body of a people. "-Manchester Guardian, February 28, 1941.
(51) The idea of a nation should not, however, be confused with the idea of nationalism. To do so would be to make the same mistake as confusing the idea of individual liberty with that of egoism.
(52) See Raphaël Lemkin, "Terrorisme," Acts de la Ve Conférence Internationale pour I’Unification du Droit Pénal (Paris, 1935), pp. 48-56; see also Lemkin, "Akte der Barbarei und des Vandalismus als delicta juris gentium" (Acts of Barbarism and Vandalism under the Law of Nations), Anwaltsblatt Internationales, Vienna, Vol. 19, No. 6, (Nov. 1933), p. 117-119 .
(53) See statement of President Roosevelt, White House Press Release, July 30, 1943, Department of State, Bulletin, Vol. IX, No. 214 (July 31, 1943), p. 62..
(54) Adequate protection of minority groups does not of course mean that protective measures should be so stringent as to prevent those who so desire from leaving such groups in order to join majority groups. In other words, minority protection should not constitute a barrier to the gradual process of assimilation and integration which may result from such voluntary transfer of individuals.
(55) Of course such an offender could never be tried twice for the same act.
(56) Research in International Law (Under the Auspices of the Faculty of Harvard Law School), "Part II. Jurisdiction with Respect to Crime," (Edwin D. Dickinson, Reporter), American Journal of International Law, Supp., Vol. 29 (1935), pp. 573-85.
(57) Since not all countries agree to the principle of universal repression (as for example, the United States of America), the future treaty on genocide might well provide a facilitative clause for the countries which do not adhere to this principle.
(58) League of Nations, Treaty Seris, Vol. 118, p. 343.
II. TECHNIQUES OF GENOCIDE IN VARIOUS FIELDS (Previous section)
III. RECOMMEDATIONS FOR THE FUTURE