The Convention on the Prevention and Punishment of the Crime of Genocide is unusual even in the realm of international criminal law, where enforcement is generally limited due to the priority of state sovereignty and the weakness of international policing and judicial authorities. The Convention, adopted by the United Nations on 9 December 1948, defines what is widely regarded as the supreme international crime (although that is not a legal status) – but ‘genocide’ was never charged in an international court for almost half a century, despite numerous occasions for its use. Although Raphael Lemkin, inventor of the term ‘genocide’ and tireless campaigner for its embodiment in international law, regarded the Convention as fundamentally superior to the Universal Declaration of Human Rights which was adopted by the UN the day before, it has also had, to all intents and purposes, a significance which has been more declaratory than judicial. The Convention has been regarded as a crucial benchmark for the politics of mass atrocity but also for sociological and historical analysis of the phenomenon.
The failure of the Convention as law is conventionally ascribed to the lack of ‘political will’ to enforce it on the part of governments. This idea assumes that it more or less satisfactorily defines the crime, and the big defect is implementation. Certainly, the Convention retains the core of Lemkin’s original idea and potentially covers many, although not of course all, cases of anti-population atrocity: were it systematically and consistently applied by powerful international authorities, it could make a striking difference to world politics. In the literature, however, it has long been argued that the Convention was ‘gutted’ from the start, as Anton Weiss-Wendt’s title suggests, particularly in the omission of ‘political groups’ and ‘cultural genocide’ from its scope – and, as I have proposed, in its lack of reference to the forced removal of populations, the most widely committed and condoned type of mass atrocity.
From this perspective, the Convention’s non-enforcement needs to be linked to its inherent defects. Weiss-Wendt provides the most systematic exploration yet of how these twin problems developed from the Convention’s very beginnings. His title could be read as suggesting that the Soviet Union was the principal ‘gutter’ – as has been widely noted, it was the main proponent of excluding ‘political groups’ – but the study is broader and richer than this suggests. Soviet leaders were more concerned to block confiscation of property and imposition of forced labour as elements of genocide, both of which appeared in UN Secretariat drafts, than to eliminate ‘political groups’; and their positions were changing and not always consistent. Indeed, although the USSR like the USA signed the treaty in 1948, it delayed ratifying it until a subsequent UN investigation into forced labour was concluded in 1954.
Likewise, other states had their own red lines on inclusion. Not only Britain but Latin American UN members rejected ‘colonial genocide’, and the US State Department opposed forced transfer of minorities as an element of the crime. The Department’s Ernest A. Gross supported this ‘by citing the international accord governing such past transfers, namely the 1945 Yalta and Postdam agreements that provided for repatriation of Soviet and Yugoslav citizens and effectuated expulsion of up to thirteen million ethnic Germans from Eastern Europe.’ The USA and UK condoned these huge Soviet-led violations at the end of the war, and were no keener than Stalin to define them as ‘genocide’. Likewise, the great powers were united in preventing the establishment of the international criminal court which was originally envisaged to enforce the Convention; this had to wait until 2002.
The Convention was developed in the context of the emerging Cold War. Weiss-Wendt shows that the USSR not only wanted to prevent an effective Convention but, through its rivalry with the United States, helped deter the latter from even ratifying it – which constituted the greatest single weakness of any possible enforcement during the next four decades (the USA finally ratified only in 1988). Racism, he argues, was the single most important factor that prevented ratification: there was a consistent fear that ‘Jim Crow’ could expose the USA to charges of genocide. This was encouraged by the campaign of US Communists and ‘fellow-travellers’ like Paul Robeson, especially around the widely disseminated book, We Charge Genocide, to which Weiss-Wendt devotes an illuminating chapter.
John Cooper’s biography, which Weiss-Wendt corrects in important respects, showed that Lemkin exploited anti-Communism, in opportunist alliance with East European emigres, in his unsuccessful campaign for US ratification. Weiss-Wendt provides much more detail and concludes that, far from being the ‘saintly figure’ into which he has been turned, he ‘emerges as a rather odious character – jealous, monomaniacal, self-important, but most of all unscrupulous’. He criticises the tendency (especially of scholars dissatisfied with the Convention) ‘to appeal to Lemkin’s original thoughts on genocide’, arguing that ‘this line of reasoning is problematic, because it renders Lemkin’s thinking on genocide static’.
Weiss-Wendt is right to tilt at undue reverence for Lemkin, whose core ideas rested on problematic holistic assumptions about and national groups, partially rooted, James Loeffler has recently suggested, in his early Zionism. However he is wrong to claim that Lemkin ‘had effectively proposed’ to ‘indiscriminately assemble all [the unsavour deeds in the history of mankind] under the single heading of genocide’. Here he goes beyond the evidence, which shows that Lemkin both had a relatively coherent idea of genocide which did not include all evil and was prepared to treat it very elastically in the cause of ratification.
Likewise, Weiss-Wendt is wrong to call Lemkin’s ‘child’, the Convention, ‘stillborn’. His volume, in far more detail than I have been able to indicate in this short review, shows us that while it may not have become effective international law, it was a key bone of contention in the emerging Cold War of the mid-20th century. Today, both despite and because of the end of the Cold War, the idea of genocide is still alive in many conflicts and the enforcement of the Convention has become a practical question from time to time. After seven decades, the Convention – however neutered and ineffective – nevertheless remains an important reference point in world politics.
The above is my draft review of Anton Weiss-Wendt, The Soviet Union and the Gutting of the Genocide Convention, Madison: University of Wisconsin Press, 2017. The final version has now been published as ‘The politics of defining “genocide”‘, Patterns of Prejudice, Volume 51, 2017, 468-70. It is online here
Martin Shaw 