It took many years to restore the memory of Raphael Lemkin, who coined the term “genocide.” Currently he is a well-known figure, especially among lawyers and historians, who appreciate his massive contribution to the concept of genocide and to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 which, taking into account his personal engagement and the influence on the treaty, is often called Lemkin’s Convention.
Lemkin’s concept arose in a difficult period for humanity, during which the slaughter of Armenians, the Great Famine in Ukraine, mass exterminations in the Soviet Union, the Holocaust, and mass crimes against the population of Central and Eastern European countries occupied by Fascist Germany all took place. However, there was no prohibition of mass killings in international law, as well as no comprehensive rules to protect minorities and other vulnerable groups. In addition, sovereignty was understood as the full power of the state over its territory and population, which resulted in the lack of reaction on the part of other governments to the suffering of the people.1 The dominant practice of non-interference in relations between a state and its citizens put the international community in the role of a passive observer of the tragedies experienced by individuals and entire groups as a result of government actions.
Raphael Lemkin was one of those engaged lawyers who lived at a turning point in history and influenced the development of international law. Before World War II, only selective initiatives were implemented regarding the protection of human rights in international law. These were related to, among other issues, the prohibition of slavery, the protection of religious and national minorities, the rights of employees or the protection of persons during armed conflicts. The drama of the mass crimes of World War II finally revealed the need to take greater responsibility for the individual and his/her dignity and to protect entire groups exposed to a violation of their rights.2 Raphael Lemkin was one of the first to notice the threats arising from the deficit of legal protection for entire social groups exposed to persecution and extermination. He made his first legal proposals even before the outbreak of war. However, it was the cruelty of mass crimes after 1939 that brought about a change in international consciousness and enabled the implementation of his ideas. The purpose of this chapter is to present Raphael Lemkin’s legacy in international law.
Personal context
Raphael Lemkin was born on 24 June 1900, in a Jewish family in Bezwodne, near Volkovysk.3 These lands, known as the Eastern Borderlands, belonged to Russia at the time of the partitions of the multinational Commonwealth at the end of the eighteenth century. He was the son of Bella and Josef. His father was a farmer, and his well-educated mother took care of her son’s upbringing and education, exerting a great influence on him. He spent his childhood in an extremely ethnically diverse part of the country, where for centuries Poles, Ukrainians, Jews, Belarusians, Lithuanians, and Karaites lived side by side. He witnessed various situations, both good and peaceful cooperation and serious tensions between ethnic groups, including discrimination against Jews. He graduated from middle school in Volkovysk, and then studied law at the Jan Kazimierz University in Lviv – one of the most important academic centers in the Second Polish Republic. He attended the courses of many outstanding Polish lawyers there, including Juliusz Makarewicz, Ludwik Ehrlih, and Stanisław Starzyński.4 Lemkin obtained a doctoral degree in law from the University of Lviv in 1926.
Multiethnic and multicultural Lviv strongly influenced him and was intellectually inspiring. Although Lemkin was interested in the suffering of minorities already in childhood – he read about the situation of Christians in ancient Rome in Henryk Sienkiewicz’s Quo Vadis – it was only during his student years that he seriously analyzed the tragedy of mass crimes committed on religious and ethnic communities. He was especially interested in the case of the massacre of the Armenians, which he discussed with his professors.5 Lemkin’s interest in mass crimes was particularly influenced by two events: the murder of Talaat Pasha, who was responsible for the pogroms of the Armenians in Turkey; and the assassination of Symon Petliura in retaliation for the pogroms against Jews by the Ukrainian People’s Republic in 1919.6 These events prompted him to ask questions about international justice and the legal responsibility of units for the crimes they committed.
3 R. Szawłowski, “Raphael Lemkin’s Life Journey: From Creative Legal Scholar and Well-to-do Lawyer in Warsaw until 1939 to Pinnacle of International Achievements during the 1940s in the States, Ending Penniless Crusader in New York in the 1950s” in A. Bieńczyk-Missala and S. Dębski (eds.), Rafał Lemkin: A Hero of Humankind (Polish Institute of International Affairs 2010) 31–57.
4 A. Redzik and I. Zeman, “Masters of Rafał Lemkin: Lwów School of Law” in A. Bieńczyk-Missala (ed.), Civilians in Contemporary Armed Conflicts (Warsaw University Press 2017) 235–240.
5 See: D.-L. Frieze (ed.), Totally Unofficial: The Autobiography of Raphael Lemkin (Yale University Press 2013).
6 M. Kornat, “Rafał Lemkin’s Formative Years and the Beginning of his International Career in Inter-war Poland (1918–1939)” in Bieńczyk-Missala and Dębski (eds.), Rafał Lemkin, 61–62.
He moved to Warsaw in 1926, where as a Doctor of Law he began his career. Lemkin became the secretary of the Appellate Court in Warsaw, and then worked as a prosecutor and a secretary in criminal law sections and sub-commissions of the Polish Codification Commission.
Lemkin also participated in the forensic seminar of Wacław Makowski at the University of Warsaw. In 1933, Lemkin became an assistant professor at the Law School of the Polish Open University in Warsaw, which was headed by Professor Emil Rappaport. He closely observed the contemporary tendencies in European criminal law, especially the legislation and new criminal law codifications in Fascist Italy and Soviet Russia. He published several papers in this field, including a translation of the Soviet Penal Code.7 He also published several papers on the codification of Polish penal law.8
Lemkin was introduced to the International Bureau for the Unification of Penal Law in the 1930s. He became a permanent Polish delegate to numerous conferences and international congresses in the field of criminal law.9 He prepared a famous lecture at the 5th International Conference for the Unification of Criminal Law in Madrid, in which he proposed new crimes against the law of nations – the crime of barbarity (exterminations by means of massacres, pogroms, or economic discrimination), and the crime of vandalism (the destruction of cultural and artistic works). His idea did not gain national or international support. At the beginning of 1934 Lemkin quit his service as a vice-prosecutor and joined the Bar of the District Chambers of Advocates in Warsaw.
After the outbreak of World War II on 1 September 1939 Lemkin made the decision, not understood by his immediate family, to escape from Poland. He went to Sweden through Lithuania, and as a polyglot he quickly began to give lectures in Swedish. Lemkin also cooperated with the Swedish government in collecting material on Nazi Germany’s policy in Europe. After about a year, he was given the opportunity to go to the United States, where he taught law at Duke University.10 His major life’s work, entitled Axis Rule in Occupied Europe, was written there and published by the Carnegie Endowment for International Peace in 1944. This book was the first to explain the term “genocide.”11
7 R. Lemkin, “Dzieje i charakter reformy prawa karnego we Włoszech” in Kodeks karny faszystowski, Warsaw 1929 7–89; Kodeks Karny Republik Sowieckich (1926) (R. Lemkin’s translation in cooperation with T. Kochanowski); see also: Kodeks karny Rosji Sowieckiej. 1927 (translation and introduction by R. Lemkin) (1928); R. Lemkin, Ustawodawstwo karne Rosji Sowieckiej. Kodeks Karny. Procedura Karna (1938).
8 For example, Lemkin edited the new Penal Code of the Republic of Poland in cooperation with J. Jamont and E.S. Rappaport: Kodeks karny r. 1932 z dostosowanymi do kodeksu tezami z Orzeczeń Sądu Najwyższego (1932).
9 A. Redzik, Rafał Lemkin (1900–1959) Co-Creator of International Criminal Law (Oficyna Allerhanda - Instytut Allerhanda 2017) 25–26.
10 D.-L. Frieze (ed.), Totally Unofficial 60–78.
11 Lemkin R., Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress (Carnegie Endowment for International Peace 1944).
After World War II he served as an advisor on the staff of the chief prosecutor in the trials of Nazi war criminals in Nuremberg in 1946. He was disappointed that the term “genocide” was not included in the Nuremberg Charter and the final judgment.12 It was also stated that murders committed before the war were not punishable offenses. Lemkin could not understand why governments’ actions against their own citizens could not be the subject of international law.
While in Europe he visited the displaced persons’ camps, met his friends, and found out that almost 50 members of his family were killed, including his parents.13 He was shocked and depressed by how Europe was so affected by World War II. His personal experiences influenced his determination to propose the convention against genocide in the United Nations (UN), a new, universal organization founded in 1945. Lemkin devoted absolutely everything to the adoption of the convention. He gave up his scientific and professional work and he stopped writing and lecturing. He devoted his personal relations to the idea of outlawing genocide, and while lobbying for the convention was difficult and disruptive for him, still he succeeded. The Convention on the Prevention and the Punishment of the Crime of Genocide (Genocide Convention, or the Convention) was adopted by the General Assembly of the UN on 9 December 1945 and entered into force on 12 January 1951. Raphael Lemkin was personally involved in its ratification. He conducted hundreds of talks with diplomats and sent letters to politicians in which he urged the adoption of the Convention.14
Raphael Lemkin, who is called the father of the Genocide Convention, was nominated for the Nobel Peace Prize many times, although he never received it. He died in New York on 28 August 1959 in poverty and oblivion. The funeral was attended only by seven relatives and his closest friends. A few days after his death, a note appeared in the New York Times:
This devoted man did more than any other individual to win formal acceptance of the principle that it is criminal to injure or destroy any national, ethnical, racial or religious group. Raphael Lemkin, once a successful lawyer in Warsaw, had suffered the loss of his f...
