A Problem from Hell

Sensing Turkish sensitivity to the outside world’s opinion, Morgenthau pleaded with his superiors to throw protocol and neutrality aside and to issue a direct government-to-government appeal “on behalf of humanity” to stop the killings. He also urged the United States to convince the German kaiser to stop the Turks’ “annihilation of a Christian race.” And he called on Washington to press the Turks to allow humanitarian aid deliveries to those Armenians already deported and in danger of starving to death in the desert.31 But because Americans were not endangered by the Turkish horrors and because American neutrality in World War I remained fixed, Washington did not act on Morgenthau’s recommendations. Officials urged him instead to seek aid from private sources.

Morgenthau did get help from outside the U.S. government. The Congregationalist, Baptist, and Roman Catholic churches made donations. The Rockefeller foundation gave $290,000 in 1915 alone. And most notable, a number of distinguished Americans, none of Armenian descent, set up a new Committee on Armenian Atrocities.32 The committee raised $100,000 for Armenian relief and staged high-profile rallies, gathering delegations from more than 1,000 churches and religious organizations in New York City to join in denouncing the Turkish crimes.

But in calling for “action,” the committee was not urging U.S. military intervention. It was worried about the impact of an American declaration of war on American schools and churches in Turkey. In addition, the sentiment that made committee members empathize with their fellow Christians in Armenia also made some pacifists. In decrying the atrocities but opposing the war against Turkey, the committee earned the scorn of former president Theodore Roosevelt. In a letter to Samuel Dutton, the Armenia committee secretary, Roosevelt slammed the hypocrisy of the “peace-at-any-price type” who acted on the motto of “safety first,” which, he wrote, “could be appropriately used by the men on a sinking steamer who jump into boats ahead of the women and children.” He continued:

Mass meetings on behalf of the Armenians amount to nothing whatever if they are mere methods of giving a sentimental but ineffective and safe outlet to the emotion of those engaged in them. Indeed they amount to less than nothing…Until we put honor and duty first, and are willing to risk something in order to achieve righteousness both for ourselves and for others, we shall accomplish nothing; and we shall earn and deserve the contempt of the strong nations of mankind.33

Roosevelt wondered how anyone could possibly advise neutrality “between despairing and hunted people, people whose little children are murdered and their women raped, and the victorious and evil wrongdoers.” He observed that such a position put “safety in the present above both duty in the present and safety in the future.”34 Roosevelt would grow even angrier later in the war, when the very relief campaign initiated to aid the Armenians would be invoked as reason not to make war on Turkey. In 1918 he wrote to Cleveland Dodge, the most influential member of the Armenia committee: “To allow the Turks to massacre the Armenians and then solicit permission to help the survivors and then to allege the fact that we are helping the survivors as a reason why we should not follow the only policy that will permanently put a stop to such massacres is both foolish and odious.”35

Morgenthau tried to work around America’s determined neutrality. In September 1915 he offered to raise $1 million to transport to the United States the Armenians who had escaped the massacres. “Since May,” Morgenthau said, “350,000 Armenians have been slaughtered or have died of starvation. There are 550,000 Armenians who could now be sent to America, and we need help to save them.” Turkey accepted the proposal, and Morgenthau called upon each of the states in the western United States to raise funds to equip a ship to transport and care for Armenian refugees. He appealed to American self-interest, arguing, “The Armenians are a moral, hard working race, and would make good citizens to settle the less thickly populated parts of the Western States.”36 He knew he had to preemptively rebut those who expected Armenian freeloaders. But the Turks, insincere even about helping Armenians leave, blocked the exit of refugees. Morgenthau’s plan went nowhere.37

As American missionaries were driven out of Turkey, they returned to the United States with stories to tell. William A. Shedd, a Presbyterian missionary, chose to write directly to the new U.S. secretary of state, Robert Lansing:

I am sure there are a great many thoughtful Americans who, like myself, feel that silence on the part of our Government is perilous and that for our Government to make no public protest against a crime of such magnitude perpetrated by a Government on noncombatants, the great majority of them helpless women and children, is to miss an unusual opportunity to serve humanity, if not to risk grave danger of dishonor on the name of America and of lessening our right to speak for humanity and justice. I am aware, of course, that it may seem presumptuous to suggest procedure in matters of diplomacy; but the need of these multitudes of people suffering in Turkey is desperate, and the only hope of influence is the Government of the United States.38

But Lansing had been advised by the Division of Near East Affairs at the State Department that “however much we may deplore the suffering of the Armenians, we cannot take any active steps to come to their assistance at the present time.”39 Lansing instructed Morgenthau to continue telling the Turkish authorities that the atrocities would “jeopardize the good feeling of the people of the United States toward the people of Turkey.”40 Lansing also eventually asked Germany to try to restrain Turkey. But he expressed understanding for Turkey’s security concerns. “I could see that [the Armenians’] well-known disloyalty to the Ottoman Government and the fact that the territory which they inhabited was within the zone of military operations constituted grounds more or less justifiable for compelling them to depart their homes,” Secretary Lansing wrote in November 1916.41 Morgenthau examined the facts and saw a cold-blooded campaign of annihilation; Lansing processed many of those same facts and saw an unfortunate but understandable effort to quell an internal security threat.

After twenty-six months in Constantinople, Morgenthau left in early 1916. He could no longer stand his impotence. “My failure to stop the destruction of the Armenians,” he recalled, “had made Turkey for me a place of horror—I had reached the end of my resources.”42 More than 1 million Armenians had been killed on his watch. Morgenthau, who had earned a reputation as a loose cannon, did not receive another appointment in the Wilson administration. President Wilson, reflecting the overwhelming view of the American people, stayed on the sidelines of World War I as long as he could. And when the United States finally entered the conflict against Germany in April 1917, he refused to declare war on or even break off relations with the Ottoman Empire. “We shall go wherever the necessities of this war carry us,” Wilson told Congress, “but it seems to me that we should go only where immediate and practical considerations lead us and not heed any others.”43 In the end it was Turkey that broke off ties with the United States.

America’s nonresponse to the Turkish horrors established patterns that would be repeated. Time and again the U.S. government would be reluctant to cast aside its neutrality and formally denounce a fellow state for its atrocities. Time and again though U.S. officials would learn that huge numbers of civilians were being slaughtered, the impact of this knowledge would be blunted by their uncertainty about the facts and their rationalization that a firmer U.S. stand would make little difference. Time and again American assumptions and policies would be contested by Americans in the field closest to the slaughter, who would try to stir the imaginations of their political superiors. And time and again these advocates would fail to sway Washington. The United States would offer humanitarian aid to the survivors of “race murder” but would leave those committing it alone.

Aftermath

When the war ended in 1918, the question of war guilt loomed large at the Paris peace conference. Britain, France, and Russia urged that state authorities in Germany, Austria, and Turkey be held responsible for violations of the laws of war and the “laws of humanity.” They began planning the century’s first international war crimes tribunal, hoping to try the kaiser and his German underlings, as well as Talaat, Enver Pasha, and the other leading Turkish perpetrators. But Lansing dissented on behalf of the United States. In general the Wilson administration opposed the Allies’ proposals to emasculate Germany. But it also rejected the notion that some allegedly “universal” principle of justice should allow punishment. The laws of humanity, Lansing argued, “vary with the individual.” Reflecting the widespread view of the time, Lansing said that sovereign leaders should be immune from prosecution. “The essence of sovereignty,” he said, was “the absence of responsibility.”44 The United States could judge only those violations that were committed upon American persons or American property.45

If such a tribunal were set up, then, the United States would not participate. In American thinking at that time, there was little question that the state’s right to be left alone automatically trumped any individual right to justice. A growing postwar isolationism made the United States reluctant to entangle itself in affairs so clearly removed from America’s narrow national interests.

Even without official U.S. support, it initially seemed that Britain’s wartime pledge to try the Turkish leaders would be realized. In early 1919 the British, who still occupied Turkey with some 320,000 soldiers, pressured the cooperative sultan to arrest a number of Turkish executioners. Of the eight Ottoman leaders who led Turkey to war against the Allies, five were apprehended. In April 1919 the Turks set up a tribunal in Constantinople that convicted two senior district officials for deporting Armenians and acting “against humanity and civilization.” The Turkish court found that women and children had been brutally forced into deportation caravans and the men murdered: “They were premeditatedly,with intent, murdered, after the men had had their hands tied behind their backs.” The police commander Tevfik Bey was sentenced to fifteen years of hard labor, and Lieutenant Governor Kemal Bey was hanged. The court also convicted Talaat and his partners in crime in absentia for their command responsibility in the slaughter, finding a top-down, carefully executed plan: “The disaster visiting the Armenians was not a local or isolated event. It was the result of a premeditated decision taken by a central body;…and the immolations and excesses which took place were based on oral and written orders issued by that central body.”46

Talaat, who was sentenced to death, was living peacefully as a private citizen in Germany, which rejected Allied demands for extradition. Conscious of his place in history, Talaat had begun writing his memoirs. In them he downplayed the scale of the violence and argued that any abuses (referred to mainly in the passive voice) were fairly typical if “regrettable” features of war, carried out by “uncontrolled elements.” “I confess,” he wrote, “that the deportation was not carried out lawfully everywhere…Some of the officials abused their authority, and in many places people took the preventive measures into their own hands and innocent people were molested.”Acknowledging it was the government’s duty to prevent and punish “these abuses and atrocities,” he explained that doing so would have aroused great popular “discontent,” and Turkey could not afford to be divided during war. “We did all we could,” he claimed, “but we preferred to postpone the solution of our internal difficulties until after the defeat of our external enemies.” Although other countries at war also enacted harsh “preventive measures,” he wrote, “the regrettable results were passed over in silence,”whereas “the echo of our acts was heard the world over, because everybody’s eyes were upon us.” Even as Talaat attempted to burnish his image, he could not help but blame the Armenians for their own fate. “I admit that we deported many Armenians from our eastern provinces,” he wrote, but “the responsibility for these acts falls first of all upon the deported people themselves.”47

After a promising start, enthusiasm for trying Talaat and his henchmen faded and politics quickly intervened. With the Turkish nationalist leader Mustafa Kemal (later Atatürk) rapidly gaining popularity at home, the Ottoman regime began to fear a backlash if it was seen to be succumbing to British designs. In addition, the execution of Kemal Bey had made him a martyr to nationalists around the empire. To avoid further unrest, the Turkish authorities began releasing low-level suspects. The British had grown frustrated by the incompetence and politicization of what they called the “farcical”Turkish judicial system. Fearing none of the suspects in Turkish custody would ever be tried, the British occupation forces shipped many of the arrested war crimes suspects from Turkey to Malta and Mudros, a port on the Aegean island of Lemnos, for eventual international trials. But support for this, too, evaporated. By 1920 the condemnations and promises of 1915 were five years old. Kemal, who was rapidly consolidating his control over Turkey, had denounced as treasonous the 1920 Treaty of Sèvres, which committed the Ottomans to surrender war crimes suspects to an international tribunal. The British clung for a time to the idea that they might at least prosecute the eight Turks in custody who had committed crimes against Britons. But Winston Churchill gave up even this hope in 1920 when Kemal seized twenty-nine British soldiers whose immediate fates Britain privileged above all else.48

In November 1921 Kemal put an end to the promise of an international tribunal by negotiating a prisoner swap. The incarcerated Britons were traded for all the Turkish suspects in British custody. In 1923 the European powers replaced the Treaty of Sèvres with the Treaty of Lausanne, which dropped all mention of prosecution. Former British prime minister David Lloyd George called the treaty an “abject, cowardly, and infamous surrender.”49

Chapter 2 “A Crime Without a Name”

Soghomon Tehlirian, the young Armenian survivor, knew little of international treaties or geopolitics. He knew only that his life had been empty since the war, that Talaat was responsible, and that the former minister of the interior would never stand trial. Since the massacre of his family and injury to his head, Tehlirian had been unable to sleep and had been overcome by frequent epileptic seizures. In 1920 he had found a cause, enlisting in Operation Nemesis, a Boston-based Armenian plot to assassinate the Turkish leaders involved in targeting the Armenians. He was assigned to murder Talaat, a crime that earned him everlasting glory in the Armenian community and brief global notoriety.

While Tehlirian awaited trial in Berlin, Raphael Lemkin, a twenty-one-year-old Polish Jew studying linguistics at the University of Lvov, came upon a short news item on Talaat’s assassination in the local paper. Lemkin was intrigued and brought the case to the attention of one of his professors. Lemkin asked why the Armenians did not have Talaat arrested for the massacre. The professor said there was no law under which he could be arrested. “Consider the case of a farmer who owns a flock of chickens,” he said. “He kills them and this is his business. If you interfere, you are trespassing.”

“It is a crime for Tehlirian to kill a man, but it is not a crime for his oppressor to kill more than a million men?” Lemkin asked. “This is most inconsistent.”1

Lemkin was appalled that the banner of “state sovereignty” could shield men who tried to wipe out an entire minority. “Sovereignty,” Lemkin argued to the professor, “implies conducting an independent foreign and internal policy, building of schools, construction of roads…all types of activity directed towards the welfare of people. Sovereignty cannot be conceived as the right to kill millions of innocent people.”2 But it was states, and particularly strong states, that made the rules.

Lemkin read about the abortive British effort to try the Turkish perpetrators and saw that states would rarely pursue justice out of a commitment to justice alone. They would do so only if they came under political pressure, if the trials served strategic interests, or if the crimes affected their citizens.

Lemkin was torn about how to judge Tehlirian’s act. On the one hand, Lemkin credited the Armenian with upholding the “moral order of mankind” and drawing the world’s attention to the Turkish slaughter. Tehlirian’s case had quickly turned into an informal trial of the deceased Talaat for his crimes against the Armenians; the witnesses and written evidence introduced in Tehlirian’s defense brought the Ottoman horrors to their fullest light to date. The New York Times wrote that the documents introduced in the trial “established once and for all the fact that the purpose of the Turkish authorities was not deportation but annihilation.”3 But Lemkin was uncomfortable that Tehlirian, who had been acquitted on the grounds of what today would be called “temporary insanity,” had acted as the “self-appointed legal officer for the conscience of mankind.”4 Passion, he knew,would often make a travesty of justice. Impunity for mass murderers like Talaat had to end; retribution had to be legalized.

A decade later, in 1933, Lemkin, then a lawyer, made plans to speak before an international criminal law conference in Madrid before a distinguished gathering of elder colleagues.5 Lemkin drafted a paper that drew attention both to Hitler’s ascent and to the Ottoman slaughter of the Armenians, a crime that most Europeans either had ignored or had filed away as an “Eastern” phenomenon. If it happened once, the young lawyer urged, it would happen again. If it happened there, he argued, it could happen here. Lemkin offered up a radical proposal. If the international community ever hoped to prevent mass slaughter of the kind the Armenians had suffered, he insisted, the world’s states would have to unite in a campaign to ban the practice. With that end in mind,Lemkin had prepared a law that would prohibit the destruction of nations, races, and religious groups. The law hinged on what he called “universal repression,” a precursor to what today is called “universal jurisdiction”:The instigators and perpetrators of these acts should be punished wherever they were caught, regardless of where the crime was committed, or the criminals’ nationality or official status.6 The attempt to wipe out national, ethnic, or religious groups like the Armenians would become an international crime that could be punished anywhere, like slavery and piracy. The threat of punishment, Lemkin argued, would yield a change in practice.

“Barbarity”

Raphael Lemkin had been oddly consumed by the subject of atrocity even before he heard Tehlirian’s story. In 1913, when he was twelve, Lemkin had read Nobel Prize winner Henryk Sienkiewicz’s Quo Vadis? which recounts the Roman emperor Nero’s massacres of Christian converts in the first century. Lemkin grew up on a sprawling farm in eastern Poland near the town of Wolkowysk, some 50 miles from the city of Bialystok, which was then part of czarist Russia. Although Lemkin was Jewish, many of his neighbors were Christian. He was aghast that Nero could feed Christians to the lions and asked his mother, Bella, how the emperor could have elicited cheers from a mob of spectators. Bella, a painter, linguist, and student of philosophy who home-schooled her three sons, explained that once the state became determined to wipe out an ethnic or religious group, the police and the citizenry became the accomplices and not the guardians of human life.

As a boy, Lemkin often grilled his mother for details on historical cases of mass slaughter, learning about the sacking of Carthage, the Mongol invasions, and the targeting of the French Huguenots. A bibliophile, he raced through an unusually grim reading list and set out to play a role in ending the destruction of ethnic groups. “I was an impressionable youngster, leaning to sentimentality,” he wrote years later. “I was appalled by the frequency of the evil…and, above all, by the impunity coldly relied upon by the guilty.”

The subject of slaughter had an unfortunate personal relevance for him growing up in the Bialystok region of Poland: In 1906 some seventy Jews were murdered and ninety gravely injured in local pogroms. Lemkin had heard that mobs opened the stomachs of their victims and stuffed them with feathers from pillows and comforters in grotesque mutilation rituals. He feared that the myth that Jews liked to grind young Christian boys into matzoh would lead to more killings. Lemkin saw what he later described as “a line of blood” leading from the massacre of the Christians in Rome to the massacre of Jews nearby.7

During World War I, while the Armenians were suffering under Talaat’s menacing rule, the battle between the Russians and the Germans descended upon the doorstep of the Lemkin family farm.8 His mother and father buried the family’s books and their few valuables and took the boys to hide out in the forest that enveloped their land. In the course of the fighting, artillery fire ripped their farmhouse apart. The Germans seized their crops, cattle, and horses. Samuel, one of Lemkin’s two brothers, died in the woods of pneumonia and malnourishment.

The interwar period brought a brief respite for Lemkin and his fellow Poles. After the Russian-Polish war resulted in a rare Polish victory, Lemkin enrolled in the University of Lvov in 1920. His childhood Torah study had sparked a curiosity in the power of naming, and he had long been interested in the insight words supplied into culture. He had a knack for languages, and having already mastered Polish, German, Russian, French, Italian, Hebrew, and Yiddish, he began to study philology, the evolution of language. He planned next to learn Arabic and Sanskrit.

But in 1921, when Lemkin read the article about the assassination of Talaat, he veered away from philology and back toward his dark, childhood preoccupation. He transferred to the Lvov law school, where he scoured ancient and modern legal codes for laws prohibiting slaughter. He kept his eye trained on the local press, and his inquiry gained urgency as he got wind of pogroms being committed in the new Soviet state. He went to work as a local prosecutor and in 1929 began moonlighting on drafting an international law that would commit his government and others to stopping the targeted destruction of ethnic, national, and religious groups. It was this law that the cocksure Lemkin presented to his European legal colleagues in Madrid in 1933.

Lemkin felt that both the physical and the cultural existence of groups had to be preserved. And so he submitted to the Madrid conference a draft law banning two linked practices—“barbarity” and “vandalism.” “Barbarity” he defined as “the premeditated destruction of national, racial, religious and social collectivities.” “Vandalism” he classified as the “destruction of works of art and culture, being the expression of the particular genius of these collectivities.” 9 Punishing these two practices—the destruction of groups and the demolition of their cultural and intellectual life—would occupy him fully for the next three decades.

Lemkin met with two disappointments. First, the Polish foreign minister Joseph Beck, who was attempting to endear himself to Hitler, refused to permit Lemkin to travel to Madrid to present his ideas in person.10 Lemkin’s draft had to be read out loud in his absence. Second, Lemkin found few allies for his proposal. In an interwar Europe composed of isolationist, nationalistic, economically ailing nations, European jurists and litigators were unmoved by Lemkin’s talk of crimes that “shock the conscience.” The League of Nations was too divided to make joint law—never mind joint law on behalf of imperiled minorities. The delegates talked at length about “collective security,” but they did not mean for the phrase to include the security of collectives within states. Besides, in the words of one delegate, this crime of barbarity took place “too seldom to legislate.” Most of the lawyers present (representing thirty-seven countries) wondered how crimes committed a generation ago in the Ottoman Empire concerned lawyers on the civilized Continent. Although the German delegation had just walked out of the League of Nations and thousands of Jewish families had already begun fleeing Nazi Germany, they were also skeptical about apocalyptic references to Hitler. When Lemkin’s plan was presented, the president of the supreme court of Germany and the president of Berlin University left the room in protest.11 As Lemkin put it later in his characteristically stiff style, “Cold water was poured on me.” 12