Lviv, a Polish city up to the 18th century, has been in rapid successionAustrian, Austro-Hungarian, Polish again, Russian, briefly western Ukrainian, then German, Soviet, and finally, since 1991, an important, if little known, city of newly independent Ukraine.
Along the way, it went from being one of the most cosmopolitan spots in the Habsburg empire to its current status as a fairly ethnically homogeneous place. More than 90% of the population is Ukrainian, with a sizeable Russian minority, but very few others. Two world wars, a Soviet occupation, plus the travails of independence meant that its Polish inhabitants have all but disappeared, after mass deportations. Even more tragically, its more than one-third Jewish citizens of pre-World War II times were slaughtered in devastating waves of ethnic cleansing.
With an unexpected symmetry, its scarring history of pogroms and concern with “ethnic purity” made this little-known town on the western edge of the Ukrainian map the place where the two modern legal concepts of “crimes against humanity” and “genocide” originated. International lawyer and University College London professor Philippe Sands traced their story in his 2016 memoir East West Street: On the Origins of “Genocide” and ‘Crimes Against Humanity.”
This coming weekend, Sands will be speaking in Asia at a literary festival where the topic of Myanmar may well come up. More than half a million Rohingya have fled Myanmar for Bangladesh since late August, and they have told of having their villages set on fire, killings, and rape. The US, whose secretary of state visited Myanmar Wednesday (Nov. 15), has expressed its concern over “violent, traumatic abuses,” but has been cautious in its use of more highly-charged terms that have proved tricky to apply since they were first developed more than 70 years ago.
The first modern genocide
The legal terms of “genocide” and “crimes against humanity” were the brain child of two legal scholars of Jewish background who didn’t know each other very much, but who had both studied law at Lviv’s university under Polish professor Juliusz Makarewicz (link in Polish), a prominent scholar of criminal law before World War II.
Makarewicz’s classes to the two men, Hersch Lauterpacht and Raphael Lemkin—living in Lemberg, as it was then known in the Austro-Hungarian Empire (1867-1918)—included lessons on one of the most hideous mass killings of the 20th century. This was the massacre of the Armenians, happening in Austria-Hungary’s neighbor and arch-rival, the Ottoman Empire, and it shaped Lemkin’s and Lauterpacht’s reflections on what constitutes the ultimate crime.
Between 1915 and 1920, when Armenia was still under Ottoman rule, as many as 1.5 million Armenians were killed or deported after a revolt. The massacres that followed are commonly called genocide by scholars—but politicians have been more cautious given the staunch objections from Turkey, whose founding followed the collapse of the empire. Still, more than 20 countries, including France, Germany, and the United States, have officially recognized the killings as a genocide—some call it the first in modern history.
Two decades later, as the horrors of the Holocaust unfolded, the two men, who had managed to take refuge far away from Lviv but were agonizing over members of their families who had been unable to escape the Nazis, experienced a sense of urgency over the need for an international court that could bring war criminals to justice.
The crime was the same—the mass killing that bloodied central Europe, murdering Jews, but also many others—yet Lauterpacht and Lemkin approached it from two different angles. For the former, horrendous crimes against any individual was an affront to all of humanity. For the latter, the idea of wanting to wipe out from the face of the earth a whole group, precisely because of the cultural or ethnic characteristics of that very group, was a different type of crime of untold brutality that required a new definition. For this, he created the neologism “genocide.”
But Lemkin did not manage to have the Nazi criminals judged in Nuremberg tried for genocide–the word appears in some submissions but not in the judgement that found them guilty of crimes against humanity. Since 1943, when Lemkin coined the term, and started his personal battle to have it included in the criminal code, only a few leaders have faced proceedings for the crime.
Codifying and prosecution
In terms that have since been accepted by international law, with a United Nations Convention in 1948, Lemkin’s criminal category of genocide requires premeditation and the clear intent of exterminating a specific group in order to be called genocide.
In the decades since then, organizations and courts have more often relied on the phrase “crimes against humanity,” hardly a lesser evil yet somehow a less charged concept, to describe mass murders of a horrific scale. Some parties have expressed concern that “genocide,” a term that should be reserved for the “crime of crimes,” could become overused.
In 1998, Jean-Paul Akayesu, former mayor of Taba Commune, a small town in Rwanda that saw many killings of Tutsi the 1994 genocide, became the first person to be found guilty of the crime of genocide by an international court. The US, under the administration of then president Bill Clinton, had been reluctant to label the slaughter of the Tutsi minority by members of the Hutu majority a genocide, for fear this would create the moral imperative to act—the UN only took the decision to do so two decades later. Over three months in 1994, somewhere between half a million and one million Tutsi were killed.
Soon after, it was the turn of former Serbian leader Slobodan Milosevicto be pursued for crimes against humanity. Milosevic was charged with committing genocide in relation to the killing of Bosnian Muslims between 1992 and 1995, amid the bloody breakup of what was formerly Yugoslavia, and was also charged with atrocities in Croatia and Kosovo. He was tried at the International Criminal Court at The Hague but died before there could be a verdict. In 2010 president Omar al-Bashir of Sudan to be indicted for genocide in absentia in relation to killings in Darfur. He remains free.
In other cases, countries have held internal trials for crimes against community, such as in the case of the mass killings in 1971 in what was then East Pakistan but is now Bangladesh. But questions of justice have dogged such domestic legal processes.
Those killings also have not managed to be formally recognized as genocide but scholars have generally agreed that they should be. It is this history, though, that has prompted prominent Bangladeshis to say they owe the Rohingya of Myanmar succour.
The case of Myanmar
Officials and groups have spoken in a number of different ways about the current tragedy unfolding in the Rakhine state of Myanmar. A UN official called the exodus “a textbook example of ethnic cleansing,” and several organizations have called the plight of the Rohingya a “crime against humanity.” Most groups and officials have steered clear of the more charged “genocide,” but it has been used in less official utterances—France’s president Emmanuel Macron reportedly used the word in a television interview. Some lawyers and academics have argued that the world should not shy away from its use in this case. While publicizing a yearlong investigation of the violence against the Rohingya, the US Holocaust Museum said the report detailed details “the mounting evidence of genocide.”
Myanmar’s military, meanwhile, has said this week it is unable to find any evidence of wrongdoing.
In a statement issued on Oct. 18, the UN Special Adviser on the Prevention of Genocide, Adama Dieng, said that “the Government of Myanmar has failed to meet its obligations under international law and primary responsibility to protect the Rohingya population from atrocity crimes.” Atrocity crimes, as defined by the UN, refer to three crimes under international law: genocide, crimes against humanity, and war crimes, as specified at the end of the statement. In the statement, Dieng and Ivan Simonovic, UN special adviser on the responsibility to protect, gave the strongest indication to date that the word genocide might be applied for what is taking place in Rakhine.
Myanmar is just the latest example of the difficulty applying concepts developed from the horrors of the 20th century in real-world situations—but in Sands’s view, these complications don’t excuse the world from acting promptly.
“Whether it is the destruction of individuals on a large scale or the destruction of group, it is shameful and wrong and a crime under international law,” Sands told Quartz. “[I]t must stop and those who are behind it—in particular those at the very top—should be held to account.”
This article was published on Quartz on 15 November 2017.