and sterilization because they were evils in their own right and because they fell on a continuum that often preceded the physical elimination of a people. In criminal law an intent to commit a crime is generally hard to prove, and intent to commit genocide even harder. Only rarely would those planning a genocide record their intentions on tape or in documents. Proving an intent to exterminate an entire people would usually be impossible until the bulk of the group had already been wiped out. The convention drafters believed it would be better to act too soon rather than too late. When one group started expelling another group from its midst, as the Turks had done in 1915 and the Serbs would do in Bosnia in 1992, it could signal a larger plan of destruction.
The law’s opponents ignored the reasoning that lay behind the ban’s provisions. Instead they zeroed in on the possibility of stretching the new law’s language to apply to practices too mild to warrant interference in another state’s domestic affairs. Some suggested that U.S. ratification would license critics of the United States to investigate the eradication of Native American tribes in the nineteenth century.8 Southern senators feared that inventive lawyers might argue that segregation in the South inflicted “mental harm” and thus counted as genocide.9 Legislators warned that the convention would empower politicized rabblerousers to drag the United States or the senators themselves before an international court.
Reckoning with American brutality against native peoples was long overdue, but the convention, which was not retroactive, could not be used to press the matter. And although the United States’dismal record on race certainly exposed it to charges of racism and human rights abuse, only a wildly exaggerated reading of the genocide convention left the southern lawmakers vulnerable to genocide charges. Lemkin himself addressed the issue: “In the Negro problem the intent is to preserve the group on a different level of existence,” he said, “but not to destroy it.”10 Eunice Carter, a spokeswoman for the National Council on Negro Women, agreed, testifying that “the lynching of an individual or of several individuals has no relation to the extinction of masses of peoples because of race, religion, or political belief.” The council supported the convention because women and children were often the first victims of genocide and because minorities would be safe nowhere if genocide went “unchecked or unpunished.”11
Again, the 1950 Senate subcommittee had sought to soothe the senators’ fears by attaching an explicit, legal “understanding” that shielded the southern states by stating clearly, “Genocide does not apply to lynchings, race riots or any form of segregation.” The critics did not heed this (embarrassing) recommendation. Nor did they acknowledge that “trumped-up” charges could be filed regardless of whether the United States ratified the convention. The problem in the decades ahead would not be that too many states would file genocide charges against fellow states at the International Court of Justice (ICJ). Rather, too few would do so. And as of late 2001 no state had yet dared to challenge the United States by filing genocide charges against it in the ICJ. The southern opposition was driven mainly by xenophobia and an isolationism that led it to try to exempt the United States from all international frameworks.
Lemkin himself became a target of xenophobic slurs. In 1950 Senate Foreign Relations Committee member H. Alexander Smith (R.–N.J.) was aggrieved that the “biggest propagandist” for the convention was “a man who comes from a foreign country who…speaks broken English.” The senator claimed to know “many people…irritated no end by this fellow running around.” Senator Henry Cabot Lodge (R.-Mass.), who supported ratification, suggested that somebody tell Lemkin he had “done his own cause a great deal of harm.” Much of the criticism was rooted less in Lemkin’s tirelessness than in his Jewishness. Smith said that he himself was “sympathetic with the Jewish people,” but “they ought not to be the ones who are propagandizing [for the convention], and they are.”12 Despite having invented the concept of genocide, Lemkin was not invited by the Senate subcommittee to testify in the congressional hearings on ratification.
Lemkin reflected upon congressional opposition to his convention by noting, “If somebody does not like mustard, he will always find a reason why he doesn’t like it, after you have convinced him that the previous reason has no validity.” Critics complained that the treaty was both too broad (and thus could implicate the United States) and not broad enough (and thus might not implicate the Soviet Union). Although it protected “national, ethnical or religious groups” that were targeted “as such,” the law did not protect political groups. The Soviet delegation and its supporters, mainly Communist countries in Eastern Europe as well as some Latin American countries, had argued that including political groups in the convention would inhibit states that were attempting to suppress internal armed revolt.13 Behind the Soviet position was the fear that the convention would invite outside powers to punish Stalin for wiping out national minorities throughout Central Asia, as well as his alleged counterrevolutionary “enemies.” Stalin, it came as no surprise, was not interested in creating a right of international intervention (or what he considered a right of unwanted meddling) to stop such practices. Because Lemkin recognized that including political groups would split the Legal Committee and doom the law, he, too, had lobbied for their exclusion.14 Instead of curing the law of its defects or supplementing it with other measures, American critics contended that a state had arguably committed genocide if it caused mental harm to five persons because of the color of their skin but had not committed genocide if it killed 100, 000 people because of the color of their party membership card. The exclusion of political groups from the convention made it much harder in the late 1970s to demonstrate that the Khmer Rouge were committing genocide in Cambodia when they set out to wipe out whole classes of alleged “political enemies.”
The core American objections to the treaty, of course, had little to do with the text, which was no vaguer than any other law that had not yet been interpreted in a courtroom. Rather, American opposition was rooted in a traditional hostility toward any infringement on U.S. sovereignty, which was only amplified by the red scare of the 1950s. If the United States ratified the pact, senators worried they would thus authorize outsiders to poke around in the internal affairs of the United States or embroil the country in an “entangling alliance.” It was hard to see how it was in the U.S. interest to make a state’s treatment of its own citizens the legitimate object of international scrutiny. Genocide prevention was a low priority in the United States, and international law offered few rewards to the most powerful nation on earth.
In May 1950 McMahon’s Senate subcommittee reported favorably on the treaty, but the North Korean invasion of South Korea the following month caused the Foreign Relations Committee to postpone its vote. The war unleashed an anti-Communist panic. Republican senators Joseph McCarthy and John Bricker criticized the United Nations as a “world government” that had dragged the United States into war. They were champions of states’ rights, which they said the federal government was trampling by joining international treaties. The genocide convention represented a stronger UN at the expense of American sovereignty and a stronger federal government at the expense of the states. Senator A. Willis Robertson, a conservative Democrat from Virginia and a Bricker supporter, wrote that he already had “enough trouble with do-gooders in our own country” who demanded a federal government role in regulating human rights. The American people certainly did not need the United Nations applying “that same type of pressure.”15 In 1952, hoping to limit the federal government’s power and backed overwhelmingly by Senate Republicans, Bricker introduced an amendment to the U.S. Constitution that would have reduced the president’s authority to approve foreign treaties.
When Eisenhower succeeded Truman in 1953, Lemkin viewed the former U.S. general as a natural ally. After his troops had liberated the Buchenwald concentration camp, Eisenhower had fired off a cable to Army Chief of Staff George Marshall denouncing the Nazi savagery: “We are told that the American soldier does not know what he is fighting for,” Eisenhower said, reflecting on the piles of corpses. “Now, at least, he will know what he is fighting against.” But generals are taught to choose their battles, and Eisenhower quickly dropped the fight for the genocide convention. In 1953, in the hopes of appeasing Bricker’s supporters, the president disavowed this and all human rights treaties.16 Secretary of State John Foster Dulles pledged that the administration would never “become a party to any covenant [on human rights]