Raphael Lemkin: The Constant Negotiator

On August 28, 1959, a man had a heart attack at the public relations office of Milton H. Blow in New York City and died shortly thereafter at a nearby police station. He was merely fifty‐nine years old and a pauper. According to Samantha Power (2013), the man’s funeral was attended by just seven people—an assertion that was disputed by a friend of the deceased.¹ Whether true or not, the description of a funeral attended by so few strongly suggests that the dead man was either deeply unpopular or a recluse. The deceased’s name was Raphael Lemkin (June 24, 1900–August 28, 1959), one of the greatest negotiators of the 20th century and an unsung hero.

This relatively unknown figure lived an extraordinary life and made a mammoth contribution to humankind through his coining of the term “genocide”—meaning the destruction of a group of people because of their identity—and his role in the passage of the U.N. Convention on the Prevention and Punishment of the Crime of Genocide. A maverick, Lemkin’s life was defined by a constant struggle against nation‐states, using his power of persuasion to convince them to relinquish some sovereignty in the interest of preventing genocide and punishing those who committed genocidal acts. Stanley A. Goldman noted that Lemkin was “one of the great persuaders of the twentieth century” and despite the “improbable odds against him, [he] would not stop until he had won his case” (Goldman 2012: 295).

To fully appreciate Goldman’s observation, one must understand that Lemkin was both Polish and Jewish and faced discrimination on both counts. From the time he fled Poland in September 1939 he was a refugee and an outsider; and he was not an official representative of any state as he advocated for the criminalization of genocide. Therefore, his resources were limited and he had to rely heavily on his negotiation skills to achieve his goals.² Furthermore, racial segregation was still prevalent in the U.S., the Soviet Union continued to commit mass atrocities in Central and Eastern Europe, and other great powers—such as the UK and France—still had colonies all over the world. Lemkin’s crusade to outlaw crimes against racial, religious, and cultural groups did not sit well with these powers. In addition, the lofty ideals surrounding individual and group rights of the mid‐1940s quickly gave way to the geopolitical tensions of the Cold War, which also complicated Lemkin’s work, leading him to assert, “My task was difficult. I had to inspire people to accept this idea, which sometimes requires a great deal of moral persuasion” (Lemkin 2013: 2).

Lemkin’s struggle to criminalize genocide under international law provides an interesting and informative case study. He “left behind some 20,000 pages of articles, letters and notes, and incomplete manuscripts archived in three institutions” (Amir 2018: 431), much of which was almost lost to history when his belongings were auctioned off in 1948 on account of a storage company debt (Cooper 2008). It is only in recent years that interest in Lemkin has grown, in large part thanks to Power and a handful of historians.³ Yet, he is still a largely understudied individual.

Several scholars have recognized Lemkin for the great negotiator that he was (Goldman 2012; Lang, 2016; Hartwell 2019a). John Cooper (2008), the author of Raphael Lemkin and the Struggle for the Genocide Convention, asserted that the Convention came about due to Lemkin’s “superhuman efforts.” Yet, no one has analyzed the reasons for Lemkin’s great success. Seventy years after the Genocide Convention came into force, this article seeks to fill that void.⁴ It will identify ten negotiation lessons that arguably made Lemkin an effective negotiator. Most of these lessons can be drawn from negotiation theories rooted in a variety of disciplinary and interdisciplinary fields, from psychology to international relations.

From the outset it is important to note that in two senses, Lemkin was what could be called a “constant negotiator.” First, he dedicated most of his life to the dogged pursuit of a singular cause: criminalizing genocide under international law. Second, at its most basic level, negotiation is often viewed as “back‐and‐forth communication designed to reach an agreement when you and the other side have some interests that are shared and others that are opposed” (Fisher and Ury 1991: xvii; emphasis added). Lemkin did not merely negotiate with one party; he was constantly working with multiple parties from different countries and organizations in order to forge agreement. Viewing Lemkin’s achievements from a contemporary perspective, they are akin to a climate activist brokering a monumental environmental deal with the most hardened climate change deniers.

Although the Genocide Convention was birthed in the aftermath of the Nazi Holocaust, the seed of Lemkin’s desire to criminalize acts of genocide was planted much earlier. Born in Wołkowysk—then part of Poland and today a small town in southwestern Belarus—Lemkin self‐identified as a Polish Jew. At around the age of eleven, he read Quo Vadis, a historical novel written by Henryk Sienkiewicz and published in book form in 1896. The novel, consisting of approximately 200,000 words, is an account of Roman emperor Nero’s persecution of Christians in 64 A.D. The book left a huge impression on him. The young boy pondered why Christians were being fed to the lions without intervention by the police (Sands 2016). Three years later, Lemkin read some of Friedrich Nietzsche’s works and was well versed in at least four languages (Cooper 2008).

After reading Quo Vadis, Lemkin became fascinated with the persecution of the Europeans by Genghis Khan and the unfair treatment and planned “extermination”⁵ of Huguenots in France, Catholics in Japan, Herero and Nama in German South West Africa, and—most impactful for Lemkin—Armenians in the Ottoman Empire. Their only crime, as far as Lemkin could see, was that these people belonged to a national, racial, or religious group.

According to his autobiography, Totally Unofficial, Lemkin already vowed as a teenager to find a way to outlaw heinous acts against groups of people. Although Lemkin downplayed his Jewish identity in his autobiography, he was undoubtedly affected by anti‐Semitism, both by his personal experience of it and what he knew to be happening to Jews elsewhere. As a boy, he read and heard stories about major pogroms against Jews in a city not far from where he lived (Cooper 2008).

In 1921, Lemkin enrolled at the University of Lwów to study philology. Three months before his studies commenced, he became infatuated with the trial of Soghomon Tehlirian, a young Armenian who assassinated Talat Pasha, a former Ottoman government minister, while the latter was visiting Berlin. Tehlirian killed Pasha because the Turk was responsible for murdering his family during the Armenian genocide. The jury found Tehlirian “not guilty” (Sands 2016).

Lemkin thought it absurd that an individual is put on trial for murdering another human being but governments could destroy groups with impunity. He asked one of his law professors, “So it’s a crime for Tehlirian to strike down one man, but not a crime for that man to have struck down one million men?” (Sands 2016: 152). His professor responded that, under international law, there was no such crime and that sovereignty allowed governments to do and act as they pleased.⁶ Consequently, Lemkin decided to take it upon himself to create the crime of genocide. He switched from studying language to legal studies, and in 1926 he graduated with a doctorate in law (Cooper 2008).

Even to this day, the sovereignty of states is one of the most sacrosanct aspects of international law.⁷ It is conceived as the right of a state to govern itself and to exercise “to the exclusion of any other state, the function of a state” (Dugard 2001: 112). But in light of the history of genocide that Lemkin studied, and in the context of the atrocities that were committed during and in the run‐up to World War II, he argued, “Sovereignty … cannot be conceived as the right to kill millions of innocent people” (Lemkin 2013: 20).

In order to understand Lemkin’s negotiation lessons, it is useful to know the timeline of certain critical events. In September 1939, following the Molotov–Ribbentrop Pact and the Nazi and Soviet invasion of Poland, Lemkin became a refugee as he fled via the Baltics to Sweden.⁸ In Sweden he spent his time learning Swedish, lecturing, and gathering considerable evidence of Nazi crimes, which he later referenced in his book Axis Rule in Occupied Europe. From Sweden, he made his way through the Soviet Union and Japan to the U.S., where he first taught at Dartmouth College.

By June 1942, Lemkin had a job with the U.S. Board of Economic Warfare in Washington, D.C. and started lobbying prominent D.C. elites—including President Franklin D. Roosevelt—to establish a convention to outlaw the “crime of crimes” (Lemkin 2013: 114). That same year the Nazis, through Operation Reinhard, exterminated a record number of Jews.

In 1944, with the support of the Carnegie Endowment for International Peace, Lemkin published Axis Rule in Occupied Europe, in which he used the word “genocide.” It was the first time the word appeared in print (Frieze 2013). He spent a great deal of time in 1945 and 1946 negotiating (unofficially) with Nuremberg prosecutors to charge Nazis with the specific crime of genocide.⁹ The “Nuremberg trials” were a series of military tribunals following World War II held by the allies under international law and the laws of war. The first and most famous trial was known as the International Military Tribunal (IMT), which tried the top Nazi political and military leaders and lasted from November 20, 1945 to October 1, 1946. Twelve additional trials, sometimes referred to as the “Subsequent Nuremberg Trials,” were conducted under Control Council Law No. 10 at the U.S. Nuremberg Military Tribunal (NMT) from December 1946 to April 1949 (Earl 2013). Although all the Nuremberg trials were held at the Palace of Justice, the IMT differs from the NMT in that the latter trials were conducted before U.S. military courts rather than an international tribunal.

In the lead up to the Nuremberg trials, Lemkin’s idea of “genocide” competed with Hersch Lauterpach’s idea of “crimes against humanity” for acceptance among legal scholars, prosecutors, and judges (Coalson 2013). The latter concept denotes the killing of large numbers of individuals, while the former concept focuses on the destruction of a group (Coalson 2013).

In 1946, Lemkin was on the sidelines of the U.N. General Assembly privately lobbying for a genocide treaty, during which time he took unpaid leave from the U.S. War Department (Cooper 2008). He resigned from his position the following year and moved to New York to dedicate all his time to lobbying the U.N. Also in 1947, Lemkin became part of a three‐man team appointed by the U.N. Secretary‐General, Trygve Lie, to draft the U.N. Genocide Convention on behalf of the Economic and Social Council (ECOSOC).

On December 9, 1948, after heavy lobbying by Lemkin and his supporters, the U.N. General Assembly finally adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which entered into force on January 12, 1951. The Convention defines genocide as any of the following acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (U.N. General Assembly 1948):

• a

  Killing members of the group;

• b

  Causing serious bodily or mental harm to members of the group;

• c

  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

• d

  Imposing measures intended to prevent births within the group; and

• e

  Forcibly transferring children of the group to another group.

Lemkin spent the remainder of his life—despite many health and financial challenges¹⁰—lobbying states to adopt the Convention and to align their national legislation with its principles.

It is possible to extract many negotiation lessons from Lemkin’s pursuit of his life’s goal. For the purpose of this article, they can be boiled down to the following:

• Lesson 1: set your goals;

• Lesson 2: develop your best alternative to a negotiated agreement (BATNA);

• Lesson 3: carpe diem;

• Lesson 4: find a common enemy or friend;

• Lesson 5: focus on the individual;

• Lesson 6: understand the other party’s goals;

• Lesson 7: it is not what you say that matters, but how you say it;

• Lesson 8: negotiate through influencers;

• Lesson 9: build a winning coalition; and

• Lesson 10: focus on your goals, not your position.

A key factor in a negotiator’s success is having a clear goal in mind from the outset. Goal theory is well developed and there is consensus that having specific goals improves one’s chances of success (Locke and Latham 2019). In essence, everything that a negotiator does should serve his or her goal.

In Lemkin’s view, “An ideal, like an ancient god, demands constant sacrifice, undivided loyalty, complete integration, and self‐denial” (Lemkin 2013: 66). To describe Lemkin as a goal‐oriented extremist may be an understatement. As mentioned, at a young age he became fixated with genocide, although the word did not yet exist. With his obsession came a strong desire to criminalize genocide under international law. Early on, he decided to make it his life’s goal. It is a goal that he revisited numerous times throughout his life.

To serve his core goal, Lemkin also set for himself a number of subgoals. For example, during his university years, Lemkin concluded that in order to have stature among other legal minds, he needed to establish himself as a legal expert. To partially satisfy that goal, he set out to publish one book per year (Lemkin 2013). He largely achieved this goal during the first decade of his life. Many of his earlier publications dealt with topics that most people would consider mundane, ranging from codification of Polish law to exchange controls. Still, those publications helped to situate him as a legal expert.

Despite anti‐Semitism in Poland, Lemkin became the Public Prosecutor for the district court in Warsaw from 1929 until his resignation in 1934 (Cooper 2008). He also taught law at Tachkemoni College in Warsaw. By the time he reached his mid‐thirties he was fairly well respected within certain law circles.¹¹

By 1939, Poland was under a double occupation. Soviet tanks rolled in from the east while Nazi tanks came in from the west. But before he left his homeland, Lemkin visited his parents for the last time. He recounted in his memoirs that his mother desperately wanted him to get married. At the same time, she recognized that he was completely dedicated to his cause and understood that “it is needed now more than ever before” (Lemkin 2013: 58). Although the negotiator was deeply popular with a string of women—some even (unconventionally given the time period) proposing to him—he remained a bachelor for the rest of his life (Cooper 2008).

Lemkin never got married because, he claimed, he was too determined to achieve his goal. His obsession with criminalizing genocide required constant nurturing. In fact, he was so devoted to his goal that he overworked himself to the point of physical exhaustion. In Paris in December 1948, following months of lobbying U.N. member states on the Genocide Convention, Lemkin collapsed two days after its adoption and was hospitalized for over three weeks. The Parisian doctors could not figure out what was wrong with Lemkin, so he diagnosed himself with “genociditis,” which he defined as “exhaustion from the work on the Genocide Convention” (Lemkin 2013: 179). His arguably unhealthy obsession with genocide is also the reason why he died a pauper. He could have excelled as a human rights lawyer, legal scholar, lobbyist, professor of history, trade lawyer, translator, or diplomat, but Lemkin chose to focus on his main goal because he deemed it more important than any other pursuit.

A negotiator’s “best alternative to a negotiated agreement” (BATNA) is the course available to him or her should negotiations fail (Fisher and Ury 1991). A key goal for any negotiator should thus be to expand one’s options in order to have more, and better, BATNAs.

Lemkin’s goal was the criminalization of genocide under international law—whether by treaty, the judgment or decision of an international body, or other method. The negotiation of such criminalization was the “negotiated agreement” that he sought. To appreciate Lemkin’s genius, one must understand the sources of international law, of which there are four according to legal scholar John Dugard (2001):

1. international custom;

2. general principles of law recognized by civilized nations;

3. judicial decisions and the teachings of the most highly qualified publicists (international law experts); and

4. international conventions (treaties).

As to the first source, Lemkin’s early research revealed that there was no widespread understanding of genocide as a crime. Therefore, there were no customary rules in favor of his cause. The second source—general principles of law recognized by civilized nations—was also of no help. Historically, states did not prosecute individuals or governments in other countries for killing groups of people within their borders—it was in contrast to the principles of sovereignty. Consequently, Lemkin first focused his energy on the other two sources.

Early in his career, Lemkin attempted to situate himself not only as a reputable legal mind, but as a prominent voice on the subject of genocide who could persuade his legal peers of his views. His first serious attempt came in 1933, when Lemkin published a pamphlet calling for “barbarity” and “vandalism” to be made crimes under international law (Lemkin 2013). At the time, the term “genocide” did not yet exist, but the definitions of barbarity and vandalism roughly correspond to what is thought of today as physical and cultural genocide, respectively (Sands 2016). Lemkin was about to present his ideas at a League of Nations conference on international criminal law in Madrid. To his dismay, he was banned from attending the Madrid Conference, but he persuaded his publisher—Pédone, the official publisher of the League of Nations—to send copies of his materials to delegates (Lemkin 2013).

In 1939, Lemkin’s advocacy and writing were interrupted by World War II and the Holocaust. As a Jew, Lemkin was extraordinarily vulnerable. Once he fled Poland, he worked hard to gather evidence of German atrocities; lobbied governments to intervene to stop the Nazis from exterminating Jews and other minorities; and set out to punish Nazis for their crimes, especially those committed against people because of their group identity. The problem is that governments and Lemkin’s legal peers did not consider genocide to be a crime, partly because no such crime existed. In 1941, British Prime Minister Winston Churchill gave a radio address in which he stated, “We are in the presence of a crime without a name” (Churchill 1941).

In the face of Churchill’s statement, Lemkin’s definition of “genocide” was introduced in Axis Rule, which received good press in publications such as the Washington Post and the New York Times. Otto Tolischus from the latter publication described the book as “a most valuable guide” but complained that it was fraught with “dry legalism” (Sands 2016: 184). Although Lemkin’s publication was never going to win a Pulitzer Prize—it was a doorstopper of nearly 700 pages—he nonetheless made sure that it reached a target audience and never missed an opportunity to give copies of his book to influential individuals. For example, on May 4, 1945, as details were being negotiated for the establishment of a tribunal for Nazi war crimes, Lemkin wrote to Robert Jackson, who he knew was tapped as the Chief U.S. Prosecutor for the IMT. He made reference to Axis Rule and informed Jackson that it was available in the library of the U.S. Supreme Court (Sands 2016). In addition, he attached a copy of his most recent article, “Genocide: A Modern Crime” (Lemkin 1945). Perhaps Lemkin had listened to his critics who thought that Axis Rule was too long and dry, because the article articulated his chief points on genocide in a concise manner, which meant it was much more accessible to a larger audience (lesson 7). Lemkin was hoping that by charging the Nazis with genocide, it “would subvert the doctrine of national sovereignty” (Irvin‐Erickson 2017: 138). By implication, the IMT would create a legal precedent, the third source of international law. It was his BATNA to the creation of a treaty on genocide.¹²

Jackson took note of Lemkin’s article, underlined a few of the passages, and borrowed a copy of Axis Rule from the library for more than a year. On May 16, Jackson’s team finalized a memo on the indictments and, as it turns out, Jackson personally added “genocide” as a potential crime (Sands 2016), including it under count three, “War Crimes.” The indictment described “genocide” as “the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups, particularly Jews, Poles and Gypsies and others” (International Military Tribunal 1945: 12).

Still, it was not a complete victory. Over four months into IMT—the first Nuremberg trial—Lemkin, who initially was not attending the trial, became anxious because the g‐word had not yet been mentioned. Consequently, he doubled down on his effort to get the prosecutors to adopt genocide in their proceedings. Note, however, that Lemkin did not set out to negotiate with just one individual—he knew that he stood a much better chance of getting what he wanted if he could persuade individuals at different levels from a host of countries and organizations. It was his way of strengthening his BATNA: if a negotiation with a particular individual failed, there would be others that he could win over. Those, in turn, might convince naysayers to change their minds, allowing Lemkin to achieve his goal.

So Lemkin kicked off a letter‐writing campaign calling for the recognition of genocide as a crime under international law, sending letters to a host of influencers, including Eleanor Roosevelt; Anne O’Hare McCormick, an editor at the New York Times; and Trygve Lie, then the new U.N. Secretary‐General (Sands 2016). He was calling on specific individuals for help (lesson 5).

Once again, Lemkin’s persistence paid off when he was summoned to Nuremberg, where he negotiated endlessly with prosecutors to specifically charge Nazis with the crime of genocide. According to Steven L. Jacobs, by the end of the IMT the word “genocide” had been employed no less than sixteen times by the British, French, and Russian prosecutors as well as by the German defense (McFall 2014).

Still, in Totally Unofficial, Lemkin devoted just two and a half pages to Nuremberg and called the outcome of the IMT “wholly insufficient” in setting judicial precedent (Lemkin 2013: 118). He perceived that he had failed to reach his goal because although the IMT employed his new term, no one was convicted for the specific crime of genocide (Earl 2013). In contrast to public memory, Nazi leaders were “punished only for crimes committed during or in connection with the war of aggression” (Lemkin 2013: 118).

Six months before the IMT concluded, Lemkin published a host of articles from New York to Oslo that promoted the establishment of a genocide convention—the final source of international law available to him (Lemkin 2013). He was strengthening his BATNA: realizing that his negotiations to convince prosecutors at Nuremberg to convict Nazi leaders for genocide were not going too well, he initiated negotiations on an international treaty to outlaw genocide.

Perhaps Lemkin was too harsh on himself in judging the results of the IMT as insufficient. His efforts did pay off, because although no one was convicted of genocide during the IMT, his work had a mammoth impact on the NMT—the Subsequent Nuremberg Trials (Earl 2013). The NMT judgment specifically referred to the “crime of genocide” and described it along the lines of Lemkin’s definition (U.S. Government 1951: 962–964). More importantly, two Nazi judges—Ernst Lautz and Oswald Rothaug—were explicitly convicted for genocide even though the crime did not appear in the indictment (U. S. Government 1951).¹³ It was a small but important step toward criminalizing genocide, or as Hillary Earl (2021), a historian and genocide expert put it, “‘genocide’ was in the air, but not firmly confirmed yet.” It was not until 1998 that an international tribunal prosecuted and convicted someone for genocide, when the International Criminal Tribunal for Rwanda (ICTR) convicted Jean‐Paul Akayesu for the crime (U.N. General Assembly 1998). The ICTR noted Lautz’s and Rothaug’s convictions for genocide—notwithstanding the absence of the charge on the indictment—which demonstrates the delicate interplay between different sources of international law (Earl 2021).

In negotiations, timing is often everything. Although a crisis represents a threat to most people, a great negotiator knows how to exploit it. A crisis can often force people to look at an imperative issue that hitherto has been ignored. The “CNN effect” may force leaders to focus on an issue that normally gets little coverage (Hartwell 2019b: 448–449).

Although the 24‐hour news cycle was not around during Lemkin’s time, there was a great deal of media coverage on World War II and Nazi atrocities. In May 1942, Szmul Zygielbojm published a report by the underground Jewish Socialist Bund in Poland. The Bund report stated that the Nazis intended to “exterminate all the Jews of Europe” (Power 2013: 31). Lemkin knew that this particular period presented the most opportune moment to push for global recognition of genocide as a crime.¹⁴ In earlier years, his call for recognition of the crimes of barbarity and vandalism was unsuccessful because the timing was not ripe for the world to recognize such crimes. For a radical idea to be widely accepted, Lemkin argued, it must satisfy the “popular tastes and needs of the age” (Irvin‐Erickson 2017: 203).

Lemkin had an acute sense of the moment. He knew exactly when and where he had to be in order to promote his agenda. Importantly, he also knew who would be there, which is why he was constantly traveling from place to place to influence events in a manner that helped him to achieve his goals. This was his normal modus operandi. Those whom he hoped to influence—politicians, judges, legal scholars, and the public at large—never studied genocide. To them, the idea was abstract. But as Nazi atrocities came to light, Lemkin was convinced that such actions would help to shine the spotlight on genocide and that, compared to earlier periods, his calls for justice would be harder to ignore.¹⁵

As noted, upon the invasion of Poland, Lemkin fled to Sweden, which was neutral and presented him with temporary asylum. Then, once he was relatively safe, he set a new goal to head to the U.S. because he concluded that is where important decisions would be made about a new world order (Power 2013). In Sweden, Lemkin immediately called on some of his former corporate clients with offices across Europe to supply him with any Nazi decrees and ordinances that they could obtain. He seized the moment. He read all the Nazi texts that he could get his hands on, meticulously analyzed them, and translated the texts into English, some of which he later gave to his friend John Vance, a law librarian at the Library of Congress, to preserve for posterity. Lemkin knew that the Nazi materials presented him with a good opportunity to build a case. Some of the documents also became important pieces of evidence in the Nuremberg trials.

Lemkin’s actions in Sweden were very typical of him. He often anticipated outcomes. Importantly, when he thought that the odds looked bad, he would double down on his efforts to get others to see things his way. For example, on August 19, 1946, a few weeks before the first Nuremberg trials—the IMT—had concluded and against his doctor’s orders, Lemkin made his way to Cambridge. He began to doubt that the IMT would convict Nazis for genocide. He therefore needed to strengthen his BATNA (lesson 2). In Cambridge he attended a conference with 300 international lawyers, thinking that he would be able to convince some of them that genocide should be recognized as an international crime. The timing was impeccable because he knew that the U.N. General Assembly would meet for the first time later that year. He wanted to launch an early campaign to help to set the agenda for a genocide convention (Sands 2016).

Similarly, in 1946, Lemkin grasped that his chances of convincing the world of criminalizing genocide had become very small and he would have to change his strategy. The Soviets had committed large‐scale atrocities against certain minorities; some American officials were concerned that racial discrimination, segregation, and lynching amounted to genocide; and the British were becoming nervous that in some ways, colonialism constituted genocide. As these nations became increasingly concerned that they themselves would be accused of genocide, Lemkin’s call for the criminalization of genocide was losing momentum among the great powers, especially as the Cold War escalated.

Lemkin noted with concern that “[t]ime was short and I had to move fast. I knew that I could hardly count on the great powers to introduce the resolution to the U.N.” (Lemkin 2013: 120). Subsequently, Lemkin turned to small and middle powers to do his bidding for him: he focused on Norway, Cuba, Panama, and India to advocate for a genocide convention. He particularly relied on Latin America, a region with a large number of U.N. members and, more importantly, natural supporters of his idea (lesson 8). Lemkin reckoned that if many small and middle powers would put genocide on the U.N. agenda, then the great powers would be forced to the bargaining table. In addition, Lemkin was advised that he would have better luck convincing small powers to develop international law as they depended on it much more than the great powers (Irvin‐Erickson 2017). Given that he was a good negotiator, he listened and adapted his negotiation strategy accordingly.

Negotiation experts advise negotiators to “identify a common connection that they share with their counterparts (even an enemy)” as it could facilitate the communication process (Hartwell 2016: 330). It was a technique that Lemkin frequently employed.

In July 1948, while Lemkin was lobbying U.N. delegates to adopt the Genocide Convention’s draft, he met with Brazilian Ambassador Gilberto Amado, a law professor, prominent novelist, and connoisseur of French wine. According to Lemkin, “I was determined not to talk about genocide this time. I asked him about the novel he was writing.” Later on in the conversation, “we mildly criticized a new book by another professor” (Lemkin 2013: 136). After Lemkin listened to Amado, showed interest in his project (the novel), and found a common enemy—another professor—the communication channels were fully open. Amado then reciprocated and asked Lemkin his thoughts on the upcoming negotiations regarding the Convention. In Amado, Lemkin found a good ally, one who defended and promoted his g‐word.

Lemkin’s interactions with many of the individuals with whom he negotiated followed a similar pattern: discuss something of interest to them, establish a connection, and then, once communication is flowing between them, pitch his ideas on criminalizing genocide. It is a technique that Lemkin frequently and successfully used in many negotiation settings.

It seems that Lemkin’s battle, from the outset, was with sovereign states. However, he did not conceive of his negotiations as such. “Lemkin believed that the actions of states were ultimately shaped by the individuals who made up the state” (Irvin‐Erickson 2017: 223). His task was, therefore, to focus on the agents who breathed life into the institutions: individuals.

Although it is often tempting to think of the “other side” as a specific government or an organization, negotiation takes place between individuals (Fisher and Ury 1991). When Lemkin attempted to court the U.S. Government, he sought out specific individuals who he thought had the power to help him achieve his goals or people who may influence the decision makers (lesson 8).

Identifying particular individuals within organizations with whom you should conduct negotiations is much more helpful than figuring out how to negotiate with an abstract entity. The “other side” is not a monolithic collective (Fisher and Ury 1991). Rather, it is populated by many different individuals with diverse interests. When negotiators perceive the other side as composed of individuals, they are able to see the multiple avenues available to them to achieve their goals. If negotiations with one person fail, they look for someone else within the same organization with whom they might have more success (Hartwell 2019b).

In June 1942, Lemkin was offered a consultancy job on the U.S. Board of Economic Warfare, which was set up to coordinate U.S. efforts following the country’s entry into World War II. The board was chaired by Vice President Henry Wallace, which meant that Lemkin was rubbing shoulders with Washington D.C.’s political elites (Sands 2016). Lemkin initially thought that Wallace would be more interested in Nazi crimes and the idea of a genocide treaty than turned out to be the case. Before they met, he attempted to find out everything there was to know about Wallace—he wanted to understand what made him tick. Lemkin discovered that Wallace was passionate about the Tennessee Valley Authority (TVA) and its work on irrigation and agriculture, so he decided to read up about it (lesson 4). When Lemkin and Wallace met, he made sure to slip in a few references about the TVA and his years on the farm as a youth (Power 2013).

In this case, Lemkin’s strategy of finding a common friend did not work; he was unable to make inroads with Wallace. Lemkin occasionally failed to build rapport with people—some people truly detested him. But he never gave up, he merely shifted his focus to the next individual willing to listen. Instead of concluding that the totality of the U.S. Government was uninterested in criminalizing genocide, he shifted his focus to a new target: President Franklin D. Roosevelt. Lemkin wrote a memorandum to Roosevelt outlining “the crime of crimes” and proposing the creation of an international treaty to criminalize such atrocities (Sands 2016: 178). Roosevelt’s response to Lemkin was lukewarm; he advised Lemkin to be patient. Lemkin was deeply disappointed by Roosevelt’s call for “patience” because, he argued, it “is a good word for when one expects an appointment, a budgetary allocation, or the building of a road. But when the rope is already around the neck of the victim and strangulation is imminent, isn’t the word ‘patience’ an insult to reason and nature?” (Lemkin 2013: 115).

But instead of giving up on the U.S., Lemkin was determined to strengthen his BATNA (lesson 2). If he could not convince the U.S. president to take this crime seriously, he would directly engage the American public. He reasoned that in a democracy, elected officials have to listen to the people, the influencers (lesson 8), so he needed to target them. Over the coming years, he built a strong coalition willing to champion his cause (lesson 9). Still, it was not merely a blanket appeal to the public at large. He singled out individuals whom he thought were especially influential with the public, who in turn, he hoped, would change the minds of stubborn politicians who resisted his call for a genocide convention.

Despite the perception by some that Lemkin died a solitary figure, he had many friends and acquaintances over the years who cared deeply about him and his cause. The archives are filled with letters of personal exchanges between Lemkin and a host of supporters. Arguably, one of the reasons that Lemkin was so effective was that he spent a lot of time cultivating those special relationships. He avoided what psychologists call “pluralistic ignorance” (Cialdini 2009: 109). The phenomenon explains why neighbors largely ignored Kitty Genovese in 1964 when the twenty‐eight‐year‐old New Yorker was brutally raped and murdered. As Robert B. Cialdini explained:

Several scientific studies have demonstrated that, when among other people, it is not always possible for individuals to identity an emergency situation or a crisis (Geiger and Swim 2016). It is thus better for a victim to point to someone specific and say “I need your help” rather than yell “help me!” into a group (Cialdini 2009: 116). Lemkin was a successful negotiator because he employed the former technique.

In mid‐October 1946, Lemkin made his way to Lake Success in New York in advance of the U.N. General Assembly meeting. He wanted to meet and build a relationship with as many individuals as possible (lesson 5) so as to strengthen his BATNA (lesson 3). If he could not get a particular individual to support the creation of a genocide convention, he would move onto someone else. Of that period, John Humphrey, Director of the U.N. Human Rights Division noted (in Cooper 2008: 78):

To support his campaign to document, publicize, and ultimately criminalize genocide, Lemkin enlisted not only the help of U.N. delegates like the legal practitioner Professor Frede Castberg (Norway), but an army of journalists including John Hohenberg (New York Post) and Eugene Meyer (Washington Post); human rights activists including James Rosenberg, Everitt R. Clinchy, Major John Ennals Dame, and Margery Irene Corbett Ashby; humanitarians such as Count Folke Bernadotte (International Red Cross) and Paal Berg (Norwegian chief justice); politicians like Leon Blum and Édouard Herriot (both former French prime ministers), and Dr. Hans Opprecht (Swiss MP); government officials including the prominent Dulles siblings (Eleanor, John Foster, and Allen); librarians such as John Vance (Library of Congress) and Trudy Sladek; community leaders and activists like Eleanor Roosevelt; famous writers such as Pearl Buck and Aldous Huxley; and research assistants like Elizabeth Nowinski and Anna May Barbour (Cooper 2008; Lemkin 2013). To recruit them, Lemkin appealed to them through friends, the radio, editorials and other publications, letters, lectures, and personal one‐on‐ones.

Expert negotiators, from former U.S. Senator George Mitchell, who negotiated the Good Friday Agreement that brought peace to Northern Ireland, to Thomas Strentz, a former FBI negotiator, have all emphasized that the most important factor in being a good negotiator is to listen (Mitchell 2015; Strentz 2018). But listening is more than merely hearing what the other party has to say. It is about understanding the other party, picking up on cues, and identifying what is important to that party so as to influence him or her.

Lemkin comprehended the importance of understanding those with whom he had to negotiate. He reasoned, “One must know the distribution of sympathies and animosities in advance in order to get favorable results.” He understood that “it was important to anticipate the opposition’s arguments” (Lemkin 2013: 133, 143). For Lemkin, it was not so much a matter of countering his opponents with facts. Although negotiators often feel the urge to fight untruths with truths, that does not always help. It is more important to understand the interests of your opponents, which allows you to identity ways to persuade your opponent of your position.

Lemkin’s persistence in understanding other parties cannot be underestimated. Tanya Elder, who studied many of Lemkin’s notes, documents, and unpublished manuscripts, argued that he did not shy away from asking “advice on addressing dignitaries or enquire about a country’s government, history or customs … It was these types of special touches that won many people over.” She further noted that “What? What? So What? What?” as well as “Why? Why, Why, Why?” are scribbled on the back of one of Lemkin’s unfinished versions of his autobiography (Elder 2005: 469, 482). Lemkin often employed “So what?” and “Why?” as his primary weapons in an attempt to strengthen his arguments for himself, his allies, and his foes.

In 1948 in Geneva, shortly before the U.N. General Assembly was about to discuss the Genocide Convention, Lemkin attempted to better understand the positions and goals of some of the key negotiating parties. He noted, “I looked over the list of delegates with the ever‐present question in my mind: Who will be for, who will be against, and who does not care either way?” (Lemkin 2013: 135) In fact, Lemkin kept detailed memorandums describing which particular aspects of the Genocide Convention were problematic to delegates from the U.S., the UK, China, Russia, Ukraine, Byelorussia, and other nations (Elder 2005). This is also where Lemkin’s key question of “why?” comes in handy. Why are negotiators from those states opposed to the Genocide Convention? By asking that question and attempting to answer it from their perspectives, he was putting himself in their shoes. It helped him to tweak the pitch he used to persuade them to support his ideas.

In July 1948, after listening to U.N. delegates in Geneva and concluding that most of them were not interested in supporting the Genocide Convention, Lemkin saw the need to spring into action, believing that “[s]ome new friends must be found” while “[n]ew avenues for altering public opinion must be sought” (Lemkin 2013: 135). He therefore renewed his focus on individuals (lesson 5), always attempting to understand their goals (lesson 6) and searching for ways to expand his BATNA (lesson 2).

It is imperative for negotiators to tailor their message to their audience. Roger Fisher and William Ury argued, “Without communication there is no negotiation” (Fisher and Ury 1991: 32). One way to effectively communicate with the other party is to heed the axiom “it is not what you say that matters, but how you say it.” Moreover, nonverbal gestures such as posture, eye contact, and smiling also matter (Dearnell 2018), as does the manner in which the message is framed and the language in which it is conveyed. Words do not always translate neatly into other languages (Strentz 2018).

After the U.N. adopted the Genocide Convention, states still needed to ratify the new treaty. At the time, U.S. Senator H. Alexander Smith, a Republican representing New Jersey, opposed the Convention because Lemkin was, in Smith’s words, “a man coming from a foreign country who […] speaks broken English” (LeBlanc 1991: 20). It was a bigoted and misleading statement about Lemkin’s communication skills.

Unknown to Smith, Lemkin studied, and to varying degrees spoke, Arabic, English, French, German, Greek, Hebrew, Latin, Lithuanian, Mandarin, Pali, Polish, Russian, Sanskrit, Spanish, Swedish, White Ruthenia, and Yiddish (Elder 2005; Cooper 2008; Lemkin 2013; Loeffler 2017; Irvin‐Erickson 2021). He proudly noted in his autobiography, “I always remember the words of Victor Hugo: ‘As many languages as you know, as many times you are a human being’” (Lemkin 2013: 75). During his university years, Lemkin published articles in Polish and Hebrew (Loeffler 2017). He also translated a short story from Hebrew into Polish (Cooper 2008).¹⁶ Then, during his early professional career as a lawyer and professor, he helped to translate a complex Polish legal text into English.¹⁷ In 1939, Lemkin wrote a book on international trade law that he published in French.¹⁸ Once he fled Poland, he learned Swedish and, after merely five months, began lecturing in that language at the University of Stockholm. He then translated his trade law book into Swedish and English while collecting Nazi decrees and ordinances (in German), which he translated into English. His letters to his brother were all in Yiddish while his personal notes were mostly in English, Polish, and French (Elder 2005). In short, Lemkin was not simply someone who dabbled with foreign languages—he was an exceptional polyglot. So when he discussed his idea of a genocide convention with the French, he could do so in their language. When he attempted to build rapport with the Soviets, he could start off with a joke in Russian.

Moreover, Lemkin’s comprehension of foreign languages offered him valuable insights into foreign cultures and thinking. Upon learning Swedish, he reflected that “I rejoiced in being able to add the understanding of a new culture to my intellectual treasury” (Lemkin 2013: 75). He comprehended the positive and negative cultural triggers of the parties with whom he was negotiating. For example, in attempting to gain support for his ideas on genocide, Lemkin appealed to a multitude of identities when he invoked prominent figures that were dear to their cultures. Lemkin stated:

As noted earlier, Lemkin initially considered advocating for the criminalization of “barbarity” and “vandalism” before eventually coining the term “genocide” to describe the crime that he wanted outlawed. Cooper (2008), Power (2013), and Sands (2016) noted that Lemkin also entertained other terms to define his new crime, including “mass murder,” “Germanization,” “denationalization,” and even the German word “Völkermord” (literally murder of a people) as well as its Polish equivalent, “ludobójstwo.” It is not clear why Lemkin settled upon “genocide,” but we know he wanted a term that would universally resonate with people in different contexts. “Völkermord,” for example, ran the risk of being too closely associated with Nazi Germany’s actions rather than capturing Lemkin’s idea that genocide is a crime that occurred before the Holocaust and is a crime that could happen again. In the end, “genocide” was arguably the perfect word because it was “short, it was novel, and it was not likely to be mispronounced” (Power 2013: 42). In coining the term, Lemkin combined the Greek word “genos,” meaning race, tribe, or religious group, and the Latin suffix “cide,” which means the act of “destroying great masses of people” (Lemkin 2013: 181).¹⁹ In short, Lemkin’s careful selection of the term “genocide” to sell the creation of this crime to the world shows how much he valued the importance of language in negotiations.

It not always necessary to negotiate directly with the party with whom you want an agreement. The other party may be inaccessible or indifferent to your interests. Thus, a key task is to identify who influences the other party.

In 1946, Russia continued to oppose adding discussion of the Genocide Convention to the U.N. General Assembly’s agenda. According to Lemkin (2013: 126), “the Russian delegate kept saying … ‘Eto ne nyzno—it is not necessary.’” The Soviet Union was concerned about a genocide convention because it had been involved in the deportation of millions of minorities, causing large‐scale deaths between 1941 and 1944 (Cooper 2008). Upon realizing he was not getting through to the other party, Lemkin decided to approach an influencer: the Czech foreign minister, Jan Masaryk.

Lemkin then focused on a common friend (lesson 4) and appealed to the individual (lesson 5). He not only knew a thing or two about the Czech foreign minister, he was intimately familiar with Masaryk’s family. And so rather than appeal to him as a representative of Czechoslovakia, he made his plea personal. Lemkin said to the foreign minister:

The foreign minister agreed to talk the next day to his Russian counterpart, Andrey Vyshinsky, a permanent representative to the U.N. Security Council. Apparently Masaryk’s appeal held sway, as Vyshinsky promised him that he would support the Genocide Convention. Lemkin joyfully noted that “in 1946 Assembly, Russia cooperated fully and even made fiery speeches supporting the convention” (Lemkin 2013: 128).

Given that Lemkin was not part of a delegation, he sometimes had to depend on intermediaries to negotiate on his behalf. To sell the Genocide Convention to the Arab world, he relied on Judge Riad Bey, an Egyptian who served as an advisor to the Saudi King and a delegate to the U.N. legal committee. Lemkin had struck up a strong friendship with Riad in November 1946 (lesson 5) and he identified a number of commonalities with him (lesson 4). The two discussed the Persian philosopher Abu Ali Sina, the Spanish Islamic theologian Ibn Rushd, and thirteenth‐century religious tolerance in Spain.

In the 1920s, amidst growing anti‐Semitism and a backslide in Polish democracy, Lemkin became an active Zionist (Loeffler 2017). Thus, in the mid‐1940s, Lemkin took special care in how he presented himself because of how he might be perceived, and how that might influence the negotiation process. His reliance on Riad thus was especially significant. He wrote:

As Irvin‐Erickson noted, “Lemkin relied on delegates like Riad to defend his interests behind closed doors … [and he acknowledged] that Riad single‐handedly saved the convention one Saturday morning, on 30 November 1946” (Irvin‐Erickson 2017: 156).

In another instance, in July 1948, shortly before states met to discuss the Genocide Convention, Lemkin made his way to Geneva to conduct serious lobbying at a critical juncture of the negotiation process (lesson 3). Unable to sleep, Lemkin took a stroll in the middle of the night and ran into Ambassador Dana Wilgress, a Canadian. The diplomat wanted to know from Lemkin why he attached so much importance to the Genocide Convention. Before answering Wilgress, in an attempt to find a common friend or foe (lesson 4), Lemkin pressed the Canadian about his field of interest. “History,” answered Wilgress. “Well,” Lemkin said, “history might help us to answer the question which you asked me on the bridge, Why is the Genocide Convention so important?” (Lemkin 2013: 140). He then proceeded to answer Wilgress in a language that Wilgress understood: the language of history (lesson 7).

Wilgress explained to Lemkin that although Canada was not going to support the Genocide Convention, he was personally in favor of it (lesson 6). Wilgress had a strong conviction that genocide had to be criminalized. He therefore facilitated a meeting between Lemkin and Dr. Herbert Evatt, Australia’s Minister of Foreign Affairs and the person who was touted to be the next President of the U.N. General Assembly.

Upon meeting Lemkin, Evatt promised to “conspire” with him to make the Genocide Convention a reality (Lemkin 2013). The Aussie became Lemkin’s friend and one of his greatest allies; and was instrumental in the creation of the Genocide Convention (Cooper 2008). Evatt frequently used his position to intervene in a manner that advanced Lemkin’s crusade; for example, by manipulating the agenda of the U.N. Legal Committee, he was able to select a chairman who was inclined to support criminalizing genocide. Here again, you see the importance of negotiating through an influencer.

Great negotiators build winning coalitions. The late Ambassador Richard Holbrooke understood this when he mediated an end to the Bosnian War. Even though the U.S. was the world’s only superpower, Holbrooke knew that he could not successfully facilitate the Dayton process without the support of the Europeans and the Russians (Hartwell 2019b).

According to Lawrence Susskind, a key task in achieving positive negotiated outcomes is to build the negotiating capabilities of one’s organization. He defined “facilitative leaders” as “men and women who help teams and networks of [people] and partners set ambitious but workable agendas, solve problems in creative ways, and support each other and the organization as a whole in the face of unexpected opportunities and obstacles” (Susskind 2014: 153). Lemkin was a facilitative leader par excellence. He developed relationships with a host of people and organizations who adopted his views almost lock, stock, and barrel. They became as determined as he was to criminalize genocide.

As mentioned earlier, Lemkin’s experience with Roosevelt taught him that in democracies, it was necessary to engage the public in order to shift the moral needle, and this is exactly what he did. In the U.S. and the UK in particular, he invested a lot of time and effort in persuading the public of his cause. If the American and British leaders were not going to support a genocide convention, then at least they would not object to it for fear of being lumped together with the authoritarian regimes who opposed it (Irvin‐Erickson 2017). For example, one petition that he facilitated to garner support for the ratification of the Genocide Convention “represented … 166 organizations from twenty‐eight countries of over 200 million persons” or alternatively, “approximately one‐tenth of the world’s population” (Elder 2005: 484).

Some of Lemkin’s allies included the U.S. Committee for a U.N. Genocide Convention, the Human Rights Committee of the National Conference of Christians and Jews, the World Jewish Congress, the Consultative Council of Jewish Organizations, the World Federation of the United Nations Associations, the International League of Catholic Women, and the World Alliance of Women (Irvin‐Erickson 2017). He also cultivated strong relationships with a host of journalists—such as Eugene Meyer and Alan Barth from the Washington Post—which resulted in strong support for his cause (Lemkin 2013). Thus, rather than rely on writing letter after letter pleading for support, he was able to amplify his voice through these coalitions.²⁰ There is no doubt that Lemkin would not have been able to convince states, through negotiation, to adopt and ratify the Genocide Convention without the support of the strong coalitions that he helped to build.

Negotiators sometimes engage in positional bargaining, in which they argue about their positions rather than identify their underlying interests or goals (Fisher and Ury 1991). Negotiating with attention to satisfying one’s goals rather than maintaining one’s position is much more likely to bring success.

In 1947, after years of lobbying for the criminalization of genocide, Lemkin was finally put on a team tasked with writing a draft of the U.N. Genocide Convention. His teammates were Vespasian V. Pella and Henri Donnedieu de Vabres. Throughout the process, Lemkin clashed a few times with his fellow drafters and with outside parties who attempted to derail the team’s work. It was a delicate process, especially given that the great powers had not fully bought into the idea of a treaty outlawing genocide (Irvin‐Erickson 2017).

Some delegates wanted to add “political groups” to the definition of genocide.²¹ Lemkin opposed this as he considered it a vague term and one that differed in kind from ethnicity, race, and religion, which tend to be involuntary, permanent markers of identity. Moreover, he anticipated that adding political groups to the Convention would kill it (Cooper 2008). He knew that several of the great powers—notably China and the Soviet Union—opposed the inclusion of political groups, arguing as he did that the term was too vague (Irvin‐Erickson 2017). The Venezuelans were also against adding protection for political groups for fear of the difficulty it would cause when dealing with terrorist organizations.

Additionally, Pella wanted the Convention to provide for a permanent international criminal court. Lemkin, for his part, wanted to include references to “cultural genocide”—the “brutal destruction of specific characteristics of a group such as the burning of books and destruction of monuments” as well as a provision for universal jurisdiction (Cooper 2008: 91). Yet, he was pragmatic and understood that if they had any hope of getting the Genocide Convention passed, the three drafters needed to drop their positions related to political groups, universal jurisdiction, a permanent court, and cultural genocide (McFall 2014). Thus, although the Genocide Convention was somewhat diluted, it was more important for Lemkin to satisfy his chief goal of criminalizing genocide rather than refuse to yield on his position or that of his co‐drafters. He wrote to Sir Hartley Shawcross, “I feel that if we will not have the convention on genocide this year we might not have it for many years because the political situation is deteriorating …” (Cooper 2008). Carpe diem (lesson 3)!

The Genocide Convention was adopted by the U.N. General Assembly on December 9, 1948. Lemkin spent a great deal of time lobbying states around the world to ratify it. The approval of twenty states was required for the Convention´s ratification, a goal achieved on January 12, 1951. Today, 152 states have signed on to the Genocide Convention.

A mere fifteen years passed between 1933—the year that Lemkin, the constant negotiator, floated his ideas on “barbarity” and “vandalism”—and 1948, the year the U.N. passed the Genocide Convention. Anyone with even a vague understanding of the evolution of international law will appreciate how rapidly genocide was criminalized. There is no doubt that a large part of it has to do with the fact that Lemkin was a superb negotiator.

In 1948, in the midst of negotiating the Convention, Lemkin began to write An Introduction to Genocide—a three‐volume book—which documents genocide from antiquity to modern times. Shortly before his death, he also wrote his autobiography—Totally Unofficial. In fact, he was negotiating the publication of Totally Unofficial when he collapsed and died. Lemkin’s writings on the history of genocide and his autobiography were only published recently. They helped to situate him as the father of genocide studies (McFall 2014).

Those books represent the voice of Lemkin as he continues to negotiate with us—scholars, legal practitioners, human rights activists, historians, and negotiators—from the grave. The books make the case that genocide will always be a fact of history, which is why it should continue to be outlawed and punished.

The twenty‐first century has so far witnessed genocide against the Darfuris in Sudan, the Rohingya in Myanmar, the Nuer and other ethnic groups in South Sudan, Christians and Yazidis in Iraq and Syria, Christians and Muslims in Central African Republic, and Uighurs in China. Thus, there is still a long way to go to stop genocide. At the same time, the world has changed a lot. Unlike exactly a century ago, when the young Lemkin’s law professor explained to him that Talat Pasha never stood trial for killing millions because he did not commit any punishable crime, individuals can now be held accountable for committing acts of genocide. Since the Genocide Convention came into being, a number of génocidaires have been prosecuted and/or convicted by international tribunals such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and, more recently, the International Criminal Court—the first and only permanent international body with jurisdiction to prosecute individuals for, among other crimes, acts of genocide.