Origins of the Genocide Convention
Remarks of Benjamin B. Ferencz
I’ll try to summarize some personal observations, experiences, and conclusions with regard to the subject we are supposed to be dealing with. The title of the program is “To Prevent and to Punish.” This particular panel is supposed to address the topic: “The Origins of the Genocide Convention.”
Origins of the Genocide Convention
I had, in my archives, a 75-page report by one of the very active participants--an NGO representative, Nehemiah Robinson--who met regularly with Lemkin and with others who pushed the Convention through.  It contains a description and the precise citation of every single step as the Convention went through the United Nations machinery. You have there the most authentic and clearest presentation of the origins of the structure of the Convention itself. The real origins, however, go back to Nuremberg and what was revealed at the Nuremberg trials about the Holocaust.
There have been atrocities, of course, of somewhat similar magnitude in other parts of the world since ancient times. The extermination of the Incas comes quickly to mind. And without getting into a dispute over whether or not the events in 1915 in Turkey with regard to the Armenians constituted genocide or not, it will be sufficient to say that for the victim or survivors it does not matter much what you call it. Giving enormous atrocities a special name has a special purpose: to stigmatize it, to emphasize how outrageous it is, and to identify it more readily. Genocide was not invented by Lemkin. He merely invented the term. 
The crime of genocide was not within the competence of the International Military Tribunal (IMT). The IMT Charter listed only three major crimes. The most important one was the Crime Against Peace , commonly known as Aggression or Aggressive War. The second, Crimes against Humanity,  was an evolutionary progression from statements made in the past about the dictates of the human consciences and the need for humanity. Of course, that would include crimes of the magnitude of what we now call genocide. War Crimes , the third category subject to jurisdiction of the IMT, had been prohibited long ago. For example, a code of conduct for the Regulation of Armies in the Field had been drawn up during the American Civil War. I will refrain from discussing those things further, however, and instead will describe my personal observations of the IMT.
A Witness to Genocide
I was a witness to what is now called genocide. As a soldier, in the U.S. Army in World War II, after serving about three years in combat, from the beaches of Normandy to the Battle of the Bulge, I was assigned to General Patton’s headquarters to investigate crimes committed in the liberated concentration camps, as well as the murder of downed Allied fliers. I entered Buchenwald and Mauthausen and a host of other camps to collect evidence of the crimes. I witnessed the effects of genocide--dead and starving people lying all over the ground. I could not tell if they were dead or alive. But I do not want to go into the horrors of it. First, we have little time. And secondly, it is far from comprehensible to a normal rational mind that human beings could be treated that way. I saw the consequences and later I got to know the mass murderers and their mentality.
The most important aspects of our subject today--prevention and punishment--require understanding the mentality of the killers. Are they sadistic beasts out for the joy, pleasure, or whatever it may be? They are not. They are people who could be sitting in this room. I will give you a more specific example, but I think we should introduce it with some photographic materials. 
What you are going to witness is the opening of the biggest murder trial in human history; the classic case of genocide where the defendants--twenty-two of the original twenty-four--were accused of murdering over a million human beings in cold blood, including men, women, invalids, and children. This was known as the Einsatzgruppen Trial, and was focused on special extermination squads camouflaged with the name “einsatzgruppen,” which means action groups. When the trial opened in the Nuremberg Courthouse, this is what the audience [heard]:
May it please your Honors. It is with sorrow and with hope that we here disclose the deliberate the deliberate slaughter of more than a million innocent and defenseless men, women, and children. This was a tragic fulfillment of a program of intolerance and arrogance. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law. We shall establish, beyond the realm of doubt, facts, which, before the dark decade of the Third Reich, would have seemed incredible. Reports will show that the slaughter committed by these defendants was dictated not by military necessity but by a supreme perversion of thought: the Nazi theory of the master race. We shall show that these deeds of men in uniform were the methodical execution of lange-range plans to destroy ethnic, national, political, and religious groups which stood condemned in the Nazi mind. Genocide, the extermination of whole categories of human beings, was a foremost instrument of the Nazi Doctrine. 
There you have the opening of what was not a very long trial. It was based upon the official top secret reports we captured, which disclosed exactly how many people each unit had killed, as well as the towns they were from and the name of the commanding officer. I took a sampling and flew from Berlin--where these documents were found--to General Telford Taylor in Nuremberg. Taylor was the Chief of Counsel for the subsequent trials. Later we became law partners and he became a distinguished professor at Columbia University. His initial response to my request that we put on another trial was very hesitant. He simply said, "We can't. We don't have budget for it. It's not been included in the original plans. The Pentagon has not approved it." I pleaded with him. He understood the importance of it and he said, "Can you handle it in addition to your other work?" I said I could, and he said, "You've got it." So, that is how I became the Chief Prosecutor of the biggest murder trial in history. I was twenty-seven years old, and it was my first case.
I rested the prosecution's case after two days. I did not call a single witness but relied on the secret reports of the accused. The defendants came in with their alibis and lies. It took about five months or so to clean up. Eventually, they were all convicted and thirteen of them were sentenced to death. Among the defendants were six SS generals, who were all selected by virtue of their rank and their education. In fact, most of them had doctoral degrees. According to the report of Dr. Rasch (who actually had two doctorates), he had managed to execute 33,771 Jews on September 29-30 of 1941.
To understand the mentality of mass murderers, the most articulate man to listen to was General Dr. Otto Ohlendorf. He was a doctor of economics, father of five children, a handsome young man, and relatively honest. He explained not merely that it was superior orders, but the rationale behind the killings. He said the rationale was self-defense. "Self-defense?" I asked. The Soviet Union was not attacking him. Germany attacked Poland, Belgium, Holland, France, Sweden, Norway; how could he get away with self-defense? "Ja," he said, "We knew that they were planning to attack us and we knew that the Soviets would not be bound by any rules, so in anticipation we launched an anticipatory strike to defend ourselves." That was his principle line of defense, and he claimed: "I couldn't challenge the Head of State, he had more information than I had. I was in no position to do that so I carried out that obligation and I would do it again in defense of the nation."
Most genocides are committed in presumed defense of some particular ideal; whether it be religion, ideology, race, self-determination, or nationalism. These are the things that usually motivate people to go out and kill and prepare to be killed. They justify it as necessary to protect their own conception of what the world should be like. It is important to understand that point. These are not wild, raving maniacs. You cannot kill an idea with a gun; you can only change it by a better idea. And that is something we have to recognize as well.
Changing the Way People Think
As I have indicated, it is very difficult to change the way people think when it relates to such a strongly held, even indoctrinated ideal. It certainly can be done, but it takes a long time and perseverance. Let me give some examples.
First, slavery was the basis for a civil war in the United States because some thought vital interests were at stake--for instance, the economy of the country. No one would make such a suggestion today. Second, the rights of women. Our Constitution provided they could not vote. That has completely changed now.
There are many other illustrations that time does not allow me to list. The idea of sovereignty itself is an obsolete notion. We live in an interdependent world. Take the computer, for example. You push the button and right away you are in China, or India, or someplace else in the world. The ancient notion that a sovereign state can do whatever it wishes within its own borders troubled Justice Jackson and others at the beginning of the IMT trial. Jackson and General Telford Taylor felt strongly that the time for change had come. No nation and no person should be above the law. The whole notion of a sovereign ruler has to change....
Prevention of genocide is the primary goal. Punishment helps to avert vengeance and encourages earlier reconciliation. But punishment itself does not operate in a vacuum. We live in a political atmosphere and we see it everyday and are affected by the circumstances that we punish. At the point when you decide to punish, you have already failed.... [Yet,] punishment is important because it tells the victims we care. We know what happened and we set a historical record that is indisputable.
As incredible as it may seem, there are some people who still deny the existence of the Holocaust. Not in my presence, for their safety. The secret minutes of the January 1942 conference in Berlin, which are on display in a German museum there, show conclusively the specific plans for the "Final Solution of the Jewish Problem," which involved the deliberate murder of about twelve million men, women, and children.  Who were the people figuring this out? They were doctors, lawyers, professors, and people in the SS of the highest intelligence. I know exactly how the Einsatzgruppen commanders arranged to murder many thousands of children. They bashed the infant's heads against a tree to save ammunition. There are other ways, but I will not go into them here.
What You Can Do About It?
What can you do about it? You can do a lot about it. For an example of what one individual can do, look to Lemkin. I thought he was a "nuddnick" (pest), but I took him seriously. He gave me his book. And for that reason, in that opening minute you heard of the Einsatzgruppen Trial, although genocide was not listed as a crime in either the IMT Charter or the Control Council Law, I called it genocide. It was the classic case of genocide. And I was thinking of Lemkin when I did that. There are many other individuals who had an impact on the future. Arvid Pardo of Malta argued that the seafloor was the common heritage of mankind.  I was in Hamburg last week, and there we have an imposing Law of the Sea Tribunal, to settle maritime disputes by law. I could list many instances where one individual made a difference regarding the environment, the Law of the Sea, and other major advances. A.N.R. Robinson of Trinidad and Tobago put the idea of an International Criminal Court on the agenda of the United Nations and became one of its most ardent champions. When I went to school there was no such thing as international criminal law. There were not such things as international courts prior to Nuremberg. The progress has been fantastic.
This is a revolution that is taking place and it is all being supported by the new miraculous means of communication. The young people can save the world by new systems of education. It begins in the cradle. And given enough determination, within one or two generations, or maybe sooner, we will have created a more humane world of the sort that we tried to create at Nuremberg and which Lemkin stood for. If you have enough drive and persistence and keep with it, you can change the world. And do you have an obligation to change it? I think you do. I think we owe it to the memory of those who perished. We owe it to the children that some of you have or will have to never stop trying to make this a more humane and secure world.
34. Nehemiah Robinson, The Genocide Convention: Its Origins and Interpretation (World Jewish Congress, 1949) reprinted in 40 Case W. Res. J. Int’l L. 315 (2008).
35. Lemkin, Axis Rule in Occupied Europe, supra note 4, at 79.
36. Charter of the International Military Tribunal in the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, art. 6, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
39. At this point in his remarks Mr. Ferencz showed a video clip of him delivering his opening statement at Nuremberg. See infra note 40.
40. Video: Einsatzgruppen Trial: U.S. Prosecution Opens Case Against Einsatzgruppen Members (National Archives-Film 1947).
41.Besprechungsprotokoll (Jan. 20, 1942), available at http://www.ghwk.de.deut.protokoll.pdf, translated in Protocol of Conference (Jan. 20, 1942), available at http://www.ghwk.de.engl/Prot-engl.pdf". See also House of the Wannsee Conference: Memorial and Educational Site (last visited Feb. 8, 2008).
42. See Press Release, U.N. Information Service, Dr. Arvid Pardo, 'Father of Law of Sea Conference' Dies at 85, in Houston, Texas, U.N. Doc. SEA/16l9 (July 16, 1999). See also Div for Ocean Affairs and the Law of the Sea Office of Legal Affairs, The Law of the Sea: Concept of the Common Heritage of Mankind, Legislative History of Articles 133 to 150 and 311(6) of the United Nations Convention on the Law of the Sea 8 (United Nations 1996).