Rafał Lemkin (1900-1959): A Life-Long Story of Engagement in the Development of Human Rights Law, by A. Krzywoń

Introduction: The Life and Legacy of Rafał Lemkin

“Genocide is as old as humanity”. This statement by Jean-Paul Sartre highlights the sad reality that destroying entire groups of people has always been a part of human history. However, despite its long existence, it was not until the 1930s and 1940s that a specific term was coined to describe this crime. This term was “genocide”, and it was the brainchild of Rafał Lemkin, a Polish Jewish lawyer who devoted his life to promoting the idea that genocide should be recognised and punished under international law. Through his tireless dialogue and advocacy, the United Nations General Assembly eventually adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 (Genocide Convention).

As the then UN Secretary-General Kofi Annan (1997-2006) noted in 2001, Rafał Lemkin is “one of the unsung heroes of the international human rights movement”. However, in recent years there has been a surge of interest in his life and work, leading to a growing body of scholarship that addresses his legacy. Notably, Philip Sands’ bestselling book, East West Street: On the Origins of Genocide and Crimes Against Humanity (Alfred A. Knopf, New York 2016, reviewed), has played a significant role in raising awareness of Lemkin’s contributions to the field of international law and criminal justice. It traces the development of legal concepts through the individual stories of Rafał Lemkin and Hersch Lauterpacht (1897-1960, who coined the term “crimes against humanity”). Sands’ fascinating and multifaceted book interweaves family histories with each man’s professional biography, highlighting their unexpected similarities and differences as well as the role of both lawyers in the Nuremberg trials (1945-1946).  

This blog post aims to provide a brief overview of the life and work of Rafał Lemkin by exploring his participation in the interwar and post-war international dialogue. It demonstrates a variety of means, including academic activities (research, publications, conferences), as well as diplomacy and personal relationships, which Lemkin used to disseminate his ideas and research. Despite having limited resources and being a refugee for much of his life, Lemkin drew upon his linguistic abilities and showed himself to be an extraordinary “constant negotiator”. His varied work experience, gained in the early stages of his career in Lviv and Warsaw, likely aided him in developing an inclusive perspective on law and human rights that later informed his ground-breaking work on genocide.

Lemkin’s Formative Years: Exploring the Influences

Rafał Lemkin was born in 1900 to a Polonised Jewish family and spent his youth on his father’s farm. From 1921 to 1926 he studied in Lviv (Polish: Lwów; now Ukraine), the third largest city of the Second Polish Republic (1918-1939), which had regained its independence after a 123-year long partition by neighbouring powers (the Austro-Hungarian, German, and Russian empires). Interwar Lviv was a multicultural, multilingual and multidenominational city. It was home to Poles but also Jews, Ukrainians and many other minorities. On the one hand, this complex ethnic and religious makeup resulted at times in tensions and conflicts over language, culture, and political power. On the other hand, this crossroads of different traditions contributed to a rich cultural and scientific life and a range of achievements in natural science, philosophy, literature and law.

The most important centre of Lviv’s academic life was Jan Kazimierz University (now Lviv’s Ivan Franko National University), where Rafał Lemkin studied and graduated in law (1926). It was the same law school where the aforementioned prominent international lawyer Hersch Lauterpacht received his education. Although it seems that their paths never crossed, the imprint of their shared Galician heritage is evident. Interestingly, both Lauterpacht and Lemkin attended lectures by the same teacher, Juliusz Makarewicz, a founder of the so-called “anthropological school” in Polish penal law. The latter was a leading architect of the Polish criminal law codification of 1932. This progressive act was widely considered to be one of Europe’s most important interwar criminal codes. It seems that Lemkin must have recognised the importance of this legislative achievement as, together with Malcolm McDermott from Duke University, he translated the code into English (The Polish Penal Code of 1932 and the Law of Minor Offenses, trans. Raphael Lemkin and Malcolm McDermott, Duke University Press, Durham 1939).

Rafał Lemkin’s scholarly research and his quest for international law morality began during his studies. In particular, he was shocked by the impunity of acts of mass murder that escaped the norms of international law, namely the Armenian genocide in Turkey (1915-1917). As he wrote in his autobiography (Totally Unofficial: The Autobiography of Raphael Lemkin, ed. Donna-Lee Frieze, Yale University Press 2013), these atrocities made him ask himself why if a man killed someone he usually faced punishment while the extermination of millions could evade retribution. Lemkin held vigorous debates on this subject with his professors, which led to him becoming interested in the legal protection of entire groups of people. Since the very beginning of his career as a lawyer, Lemkin expressed resentment that there were no laws unifying moral standards for the destruction of ethnical, cultural and religious communities. 

From “Vandalism and Barbarity” to Genocide

After completing his studies, Rafał Lemkin moved to Warsaw (1929), where he worked as a public prosecutor and later established his own law practice. He was a lecturer at the Free Polish University in Warsaw and an extremely ambitious scholar who published extensively on a wide range of topics in Polish, Yiddish, French, German, Italian, Swedish and English. In addition, he worked in the criminal law Section of the Polish Codification Commission and, in the late 1920s, published translations of Soviet and Italian fascist criminal codes. During the 1930s, Lemkin was a prominent figure in national and international legal circles, participating in numerous conferences and serving as a member of various legal associations, including the International Association of Criminal Law and the International Law Association.

His first ground-breaking publication, in which he proposed the recognition of two new international crimes, was a report to the Fifth International Conference for the Unification of Penal Law held in Madrid in 1933. In this document, published in French and disseminated in Polish and German academic journals, Lemkin dealt with acts of vandalism and barbarity. He defined vandalism as the intentional destruction or damage of property without a lawful cause. In particular, vandalism constituted a crime of destruction when it involved art and culture since cultural objects belong to humanity as a whole. Regarding crimes of barbarity, Lemkin defined them as acts of cruelty, violence, or other inhuman behaviour, such as massacres, pogroms and collective cruelties. These crimes concerned systematic and organised actions directed against a population as a whole or against a racial or religious group. In his report, Lemkin highlighted the importance of consistency in defining and treating vandalism and barbarity across different legal systems and the need to prosecute and punish these crimes. As noted by Philip Sands, Lemkin here drew on the views of Vespasian Pella, a Romanian scholar who promoted the idea of “universal jurisdiction”. Interestingly, Lemkin and Pella later participated in the drafting of the Genocide Convention.

Lemkin’s Opus Magnum

Following the outbreak of WWII in 1939, Rafał Lemkin fled Warsaw to Sweden and later, in 1941, he emigrated to the United States, where he lived until his death. Unfortunately, it seems that his family disregarded his warnings about the dangers of Nazi Germany: Lemkin lost almost all his family members during the Holocaust.

To escape occupied Poland, Lemkin used his contacts with the lawyers and diplomats he had met during his academic career and journeys. He managed to get a visa to Sweden in the early months of 1940. During his stay in Sweden, he lectured at the University of Stockholm and started extensive research on laws imposed during the German occupation of Poland, the Baltic States, Czechoslovakia, the Netherlands, France and many others, collecting Nazi decrees and official gazettes. Finally, in 1941 Lemkin moved to the United States where – thanks to the aforementioned Malcolm McDermott, who translated with Lemkin the 1932 Polish criminal code and Robert R. Wilson (1898–1975), chair of Duke University’s political science department – he found a safe haven in Durham, North Carolina.

Using Duke’s resources, Lemkin devoted himself entirely to developing his earlier ideas, which resulted in the publication of Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposal for Redress in 1944. In his opus magnum – for the very first time – he coined the term “genocide” derived from Greek genos (race, nation or tribe) and the Latin suffix –cide, which comes from cadere (to kill). Lemkin’s book was one of the first works to compile Nazi occupation laws and systematically examine the phenomenon of genocide and its relationship to international law. Lemkin argued that genocide was a crime distinct from other forms of mass violence and that it deserved a specific status recognition under international law.

The book provided a detailed examination of the atrocities committed by the Axis powers during WWII. It argued that these acts constituted a coordinated effort to destroy entire communities and populations. Lemkin claimed that it was not simply the result of the war but a deliberate and systematic attempt to eliminate groups of people based on their ethnicity, religion, or culture. Against this backdrop, he proposed a broad definition of genocide which encompassed not only physical genocide but also actions aimed at destroying the political and social institutions, culture, language, religion and livelihood of a group. Genocide therefore consists of two stages: first, the elimination of the cultural identity of the targeted group, followed by the imposition of the cultural identity of the oppressor. This imposition can occur either by forcing the remaining oppressed population to conform or by removing the population and replacing it with the oppressor’s nationals.

What is essential in his innovative work is that Lemkin went beyond well-established principles of international law. He opposed certain then prevalent concepts of State sovereignty as developed by Carl Schmitt with his understanding of the State’s monopoly on the use of force. According to Lemkin, in no case can sovereignty be understood as the right to kill millions of innocent human beings, even if they are citizens of the State that does so. It was a daring and creative proposal that departed from the commonly held view at the time that the sovereignty of States and non-interference in internal affairs were absolute principles.

Moreover, in Axis Rule in Occupied Europe, Lemkin included innovative recommendations for the future, calling for the international prohibition of genocide in war and peace. He argued that the protection of minorities on the national level was not sufficient and often inadequate as not every European country possessed the appropriate judicial machinery to enforce its own constitution. Lemkin claimed that international legal instruments, such as the Hague Conventions, were deficient in so far as they were limited in application to the circumstances of international armed conflict and dealt instead with technical rules concerning the occupation. It placed the international community in the role of a passive bystander. Consequently, he proposed the development of a new international multilateral treaty requiring States to provide for the introduction of norms protecting religious or racial groups from oppression and genocidal practices. Furthermore, he advocated for the adoption of the principle of universal jurisdiction for the crime of genocide and the establishment of an international controlling agency vested with specific powers, such as a mandate that permitted them to visit the occupied countries and making inquiries.

Lemkin’s Moral Engagement and Dialogue: Drafting of the Genocide Convention

Lemkin’s detailed and analytical work in mid-1942 led to his calling for the Board of Economic Warfare in Washington D.C. Subsequently, as a special adviser on foreign affairs to the War Department, Lemkin joined the group of American professionals involved in the preparation of the Nuremberg trials. For this purpose, he used diverse instruments of dialogue and lobbying, including a letter sent to Robert Jackson, the US chief of counsel for the prosecution of Nazi war criminals, which contained a piece of his academic writing on genocide. It seems that Lemkin successfully advocated for including the term “genocide” in the indictment against the Nazi leadership. Nonetheless, this accomplishment seemed insufficient for him. Lemkin was concerned with protecting vulnerable groups against “future Hitlers” and started a campaign for an international convention on genocide.

Rafał Lemkin never missed an opportunity to give copies of his book to influential individuals. Moreover, his efforts intensified during numerous formal and non-formal meetings. Finally, his devotion and dedication resulted in him being one of the three experts – together with Vespasian Pella and Henri Donnedieu de Vabres – appointed by the United Nations Secretariat to draft the text of the Convention on the Prevention and Punishment of the Crime of Genocide. The latter, adopted by the United Nations General Assembly in 1948, was a sign of a growing awareness of the need for international responsibility for the protection of communities threatened with genocide and repression. 

Although some of the provisions of the Genocide Convention have, for practical purposes, remained a dead letter for a long time and it would take a number of decades before perpetrators of the most severe crimes were brought to international justice, Lemkin’s lifelong engagement has left a lasting legacy and until this day serves as an inspiring example of moral commitment to a great cause. Through his tireless effort, Rafał Lemkin brought the issue of genocide to the forefront of international discourse and made it a matter of global concern.

Posted by Adam Krzywoń (assistant professor at the University of Warsaw, research fellow at FÖV Speyer)

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Picture credits:

Raphael (Rafał) Lemkin: NYPL Digital Collections

Ratification of Genocide Convention: NYPL Digital Collections

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Suggested citation: A. Krzywoń, “Rafał Lemkin (1900-1959): A Life-Long Story of Engagement in the Development of Human Rights Law”, BACL Blog available at https://wp.me/p80U0W-1qT

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This piece belongs to the “Cross-jurisdictional dialogues in the Interwar period” series dedicated to less-known legal transfers which have had a palpable impact on the advancement of the law. The Interwar period was a time of disillusionment with well-established paradigms and legislative models, but also a time of hope in which comparative dialogue and exchange of ideas between jurisdictions thrived. The series is edited by Prof Yseult Marique (Essex University) and Dr Radosveta Vassileva (Middlesex University).