Holocaust Law and Legacy

In December 1944 a Polish lawyer in his mid-forties was working out of a borrowed office at the United States Board of Economic Warfare in Washington. He had escaped from Lithuania in October 1939 by crossing the frozen border into Latvia on foot, had reached Sweden via fishing boat, had argued his way to a transit visa, and had ended up in Durham, North Carolina, teaching at Duke University Law School. He was at his Washington desk for five years, working on a long book about Nazi occupation policy, supporting his work at night by writing reports for the United States government on the legal implications of what was happening in Europe. Forty-nine of his relatives, including his parents, had been murdered. He did not have a word for what had been done to them.

The word he eventually coined was genocide. It first appeared in print in his book Axis Rule in Occupied Europe, published by the Carnegie Endowment for International Peace in November 1944. He had built it from the Greek genos, race or tribe, and the Latin cide, killing. He had thought of and rejected several alternatives. The word he settled on was the right one: it named, in three syllables, the kind of crime for which the international system had no legal category, no clear definition and no specific prohibition. The Nazi project was not just war crime. It was not just crimes against humanity in the traditional sense of mistreatment of civilians under occupation. It was the deliberate, planned destruction of a people. The new word allowed the new crime to be named.

Raphael Lemkin spent the rest of his life lobbying the United Nations to make the word law. He worked, mostly alone, mostly without funding, mostly without recognition, lobbying delegations and writing draft after draft of what would eventually become the Convention on the Prevention and Punishment of the Crime of Genocide. The Convention was adopted by the General Assembly on 9 December 1948, the day before the Universal Declaration of Human Rights. It came into force in January 1951. Lemkin attended the signing ceremony at the Palais de Chaillot in Paris in December 1948 and wept. He died in August 1959 in a small apartment in New York at the age of fifty-nine. Seven people attended his funeral. The Convention he had drafted has been ratified by 153 states.

The legal architecture that emerged from the rubble of Europe in the years after 1945, the Nuremberg Charter, the Genocide Convention, the Universal Declaration of Human Rights, the Geneva Conventions of 1949, the doctrine of crimes against humanity, the principle of universal jurisdiction, the International Criminal Court, was built in direct response to the Holocaust. None of it existed before. Most of it now does, even where it is honoured selectively. This page traces what was built, what it stops, what it does not, and how the law that came out of the camps continues to shape the way the world responds to mass killing eighty years on.

Before 1945

Before the Second World War international law had almost nothing to say about what a state did to its own citizens. The laws of war regulated conduct between combatants and the treatment of foreign civilians under occupation. The treatment by a government of its own population was its own affair. Under the framework as it stood in 1939 a state could legally have set up Auschwitz, killed every Jewish citizen within its borders, and answered to no court. The few existing prohibitions, on slavery, on piracy, on the conduct of war as defined by the Hague Conventions of 1899 and 1907 and the Geneva Convention of 1929, did not reach the case.

The gaps were known to international lawyers. Hersch Lauterpacht, a Polish-Jewish jurist who had escaped to England in the 1920s and become Whewell Professor of International Law at Cambridge, had been arguing since the early 1930s that a system of international law that protected only states and not the individuals within them was incomplete. He drafted what he called an International Bill of the Rights of Man, published in 1945. Lemkin, working from a different angle, was arguing for a specific legal category to cover the destruction of peoples. The two men did not always get on. They were both Polish Jews from Lwów, a city later divided between Poland and Ukraine that they would never see again, who had ended up in the West. They had both lost almost everyone they had grown up with. They both spent the same years working on different parts of the same problem. They are buried in different cities. Their work is in the same body of law.

The Nuremberg principles

The London Charter of August 1945 set out three categories of crime over which the International Military Tribunal would have jurisdiction: crimes against peace, war crimes, and crimes against humanity. The third category, drafted by Lauterpacht for the British prosecution team, was the new one. It covered murder, extermination, enslavement, deportation and persecution on political, racial or religious grounds, committed against any civilian population, before or during the war. It was the formula that allowed the prosecution to charge the defendants for what they had done to German Jews from 1933 onwards, before any war had begun. Under the existing framework of war crimes alone, those acts would have been outside the court’s reach.

The judgment of October 1946 affirmed seven principles that the United Nations General Assembly adopted in resolution 95(I) in December that year. The International Law Commission codified them in 1950 as the Nuremberg Principles. Their core claims were that any person committing an act constituting a crime under international law is responsible for it; that internal law or government order does not relieve responsibility; that heads of state and government officials are not exempt; that following superior orders is not a defence if a moral choice was possible; that the right to a fair trial applies; that crimes against peace, war crimes and crimes against humanity are punishable; and that complicity is itself a crime.

These propositions are now uncontroversial. In 1945 they were radical. The defence at Nuremberg argued they were retroactive, that no individual could be held to a standard of international criminal law that had not existed in 1939. The tribunal rejected the argument. The crimes had been so plainly evil that no civilised nation could have been ignorant of their wrongness, and the absence of a court to try them did not erase their criminality. The argument was philosophical as much as legal. It came down to whether moral norms exist independently of the legal systems that recognise them. The court held that they do. Eighty years of subsequent international law has been built on the same proposition.

The Convention

The Genocide Convention defines genocide as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. Five categories of act qualify: killing members of the group; causing serious bodily or mental harm; deliberately inflicting conditions calculated to bring about physical destruction; imposing measures intended to prevent births; and forcibly transferring children. Genocide is a crime under international law whether committed in time of peace or war. State parties undertake to prevent and punish it. They must enact domestic legislation. They must extradite or try suspects.

The Convention has limits, several of them written in by the political pressures of the moment. The drafting committee deliberately excluded political groups from the list of protected categories at Soviet insistence; Stalin, who was in the middle of a series of purges of political enemies, did not want any new category that might cover what his security services were doing. Cultural genocide was dropped from the final text under pressure from colonial powers, including the United States, which feared it might be applied to their treatment of indigenous populations. The proposed enforcement mechanism, an international criminal court, was put off; it would not exist for another fifty years. Proving the specific intent to destroy a group, the dolus specialis, has been the central evidentiary problem in every prosecution since.

The Convention has been used. It has been the legal basis on which the International Court of Justice has heard cases including Bosnia and Herzegovina v. Serbia (judgment 2007, holding that Serbia had failed in its obligation to prevent the Srebrenica genocide), Croatia v. Serbia (2015), The Gambia v. Myanmar (ongoing on the treatment of the Rohingya population), and South Africa v. Israel (ongoing on operations in Gaza). The International Criminal Tribunal for Rwanda secured the world’s first international conviction for genocide in 1998 against Jean-Paul Akayesu, a former bourgmestre of Taba commune. The International Criminal Tribunal for the former Yugoslavia secured the second in 2001 against Radislav Krstić, the Bosnian Serb general responsible for Srebrenica, where 8,372 Muslim men and boys were killed in eleven days in July 1995. The Convention is not a perfect instrument. It is the best instrument the international community has built so far for naming the crime Lemkin had named.

The Eichmann precedent

On the morning of 23 May 1960 the Israeli Prime Minister David Ben-Gurion rose in the Knesset and made an announcement that startled the chamber and the world. I have to inform the Knesset, he said, that some time ago Israel’s security services found one of the greatest of the Nazi war criminals, Adolf Eichmann, who together with the Nazi leaders organised what they called the Final Solution of the Jewish problem, that is the extermination of six million European Jews. Adolf Eichmann is already under arrest in Israel and will shortly be brought to trial. What followed was the legal proceeding that established, in practice, the doctrine of universal jurisdiction over crimes against humanity.

Eichmann had been seized in Argentina in violation of Argentine sovereignty. He had then been brought to Israel, a state that had not existed when his crimes were committed and had no territorial connection to them. He was not an Israeli citizen. The Argentine government, after Ben-Gurion’s announcement, complained to the United Nations Security Council. The Security Council passed Resolution 138 in June 1960 noting that the seizure had violated Argentine sovereignty and asking that Israel make appropriate reparation. Israel apologised. Argentina, exhausted, accepted the apology. The trial proceeded.

The Jerusalem District Court accepted jurisdiction on two grounds. The first was the principle that crimes against humanity and genocide are crimes against the human race as a whole; any state that has the perpetrator in custody may try him. The second was the protective principle: Israel, as the state of the Jewish people, had a particular standing to try crimes whose object was the destruction of that people. The court was at pains to distinguish the two grounds and to root them in international law. The trial took eight months. Eichmann sat in a bulletproof glass booth. He maintained throughout that he had been a small functionary obeying orders. The court rejected the defence and sentenced him to death. He was hanged at Ramla Prison on the night of 31 May to 1 June 1962, his body cremated, and the ashes scattered at sea outside Israeli territorial waters so that no grave could become a shrine.

The Eichmann judgment is the most influential single application of universal jurisdiction in the history of international criminal law. It established that a national court could try crimes against humanity regardless of where they were committed and regardless of the nationality of the defendant or victim. Spanish, Belgian, German, French, British, Senegalese and Argentine courts have since invoked the same principle to try defendants from Argentina, Chile, Rwanda, Bosnia, Liberia, Chad, Syria and elsewhere. The Spanish judge Baltasar Garzón’s indictment of Augusto Pinochet in 1998 drew directly on the Eichmann reasoning, as did the Belgian prosecutions of the Rwandan genocidaires in the early 2000s. The doctrine has been narrowed in some respects, particularly by the International Court of Justice’s holding in Arrest Warrant (DRC v. Belgium, 2002) that serving heads of state, foreign ministers and other senior officials enjoy immunity from foreign criminal jurisdiction during their term of office. The wider principle of jurisdiction over completed crimes by ex-officials has held.

The ad hoc tribunals

The Holocaust generation of international law had no permanent court. The Nuremberg and Tokyo tribunals were single-purpose institutions. Between 1946 and 1993 there was no international forum to try mass atrocity crimes; prosecution was a matter of domestic courts when they could be persuaded to act and silence when they could not.

The break came in February 1993. Nine months earlier, in May 1992, the Bosnian Serb forces under General Ratko Mladić had begun the campaign that would eventually result in the Srebrenica massacre. Television footage of the camps at Omarska and Trnopolje, broadcast by Penny Marshall and Ed Vulliamy in August 1992, had given European and American publics images that bore an undeniable resemblance to the photographs of 1945. The Security Council, after months of debate, established the International Criminal Tribunal for the former Yugoslavia by Resolution 827 in May 1993. It was the first international criminal tribunal since Nuremberg. Eighteen months later, after the Rwandan genocide had killed approximately 800,000 Tutsis and moderate Hutus in 100 days, the Council established the International Criminal Tribunal for Rwanda by Resolution 955 in November 1994.

The two tribunals worked for over twenty years. The ICTY indicted 161 persons. It convicted Radislav Krstić of genocide in 2001 for Srebrenica, the first international conviction for genocide since 1945; it convicted Radovan Karadžić in 2016 and Ratko Mladić in 2017; it convicted dozens of other military and political leaders of the Bosnian Serb, Bosnian Croat and Bosnian Muslim parties to the conflict. Slobodan Milošević, the former Yugoslav president, died in his cell during his trial in March 2006, four years into proceedings, before judgment could be reached. The ICTR convicted sixty-two persons including the former Rwandan prime minister Jean Kambanda, who pleaded guilty to genocide on 1 May 1998, the first head of government ever to do so. Its judgment in Akayesu (1998) was the first to find that rape and sexual violence can constitute genocide when committed with intent to destroy a group, an extension of the Convention’s reach that has shaped the law of armed conflict ever since.

Other special tribunals followed: the Special Court for Sierra Leone (which convicted Charles Taylor of Liberia in 2012), the Extraordinary Chambers in the Courts of Cambodia (which tried surviving Khmer Rouge leaders), the Special Tribunal for Lebanon, the hybrid panels in Kosovo, East Timor and elsewhere. None of these institutions existed without the Nuremberg precedent and the body of law and procedure that Nuremberg had established.

The International Criminal Court

The Rome Statute of the International Criminal Court was adopted on 17 July 1998 by 120 states meeting at the headquarters of the Food and Agriculture Organisation in Rome. It came into force on 1 July 2002 with the sixtieth ratification. The Court has jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression. As of 2026, 124 states are parties. The United States, Russia, China, Israel and India are not. The United States signed under President Bill Clinton in 2000 and unsigned under President George W. Bush in 2002.

The Court has issued arrest warrants for, among others, Omar al-Bashir of Sudan in 2009 and 2010 for the genocide in Darfur; Vladimir Putin of Russia in March 2023 for the unlawful deportation of Ukrainian children from occupied territory; Benjamin Netanyahu of Israel and Yoav Gallant of Israel in November 2024 for crimes in Gaza; and Mohammed Deif and Yahya Sinwar of Hamas at the same time for the attacks of 7 October 2023. It has secured convictions of warlords from the Democratic Republic of Congo, Mali, Côte d’Ivoire, Uganda and the Central African Republic. Its enforcement record is mixed. It depends on state cooperation that great powers can obstruct, and the great powers have repeatedly obstructed it. The United States imposed sanctions on the ICC prosecutor in 2020 under President Trump, lifted them under President Biden, and imposed them again under President Trump’s second administration in 2025. The Court has faced sustained criticism that its early docket fell disproportionately on African defendants. Its later expansion to cases involving Russian, Israeli and other non-African leadership has demonstrated that the geographical pattern was a function of state cooperation rather than of prosecutorial choice.

The ICC is not the institution Lemkin had imagined. It is more limited in its jurisdiction, more constrained by the politics of state membership, and less effective in obtaining custody of senior defendants. It is the institution the international community has been able to build. It is, by some distance, more than was available before it.

The duty to prevent

The Genocide Convention’s promise to prevent has been a long-standing failure. The world did not stop the killing in Cambodia in the late 1970s, or in Bosnia in the early 1990s, or in Rwanda in 1994, or in Darfur from 2003. The Responsibility to Protect doctrine, adopted unanimously by the United Nations World Summit in September 2005, sets out three pillars: a state’s responsibility to protect its own population from genocide, war crimes, ethnic cleansing and crimes against humanity; the international community’s responsibility to assist; and, when a state manifestly fails, the international community’s responsibility to take collective action through the Security Council.

The doctrine has been invoked in Libya in 2011, where it provided the legal basis for the NATO intervention against the Gaddafi regime, and in Côte d’Ivoire in the same year. It has not been successfully invoked in Syria, where the Council has been deadlocked since 2012 by Russian and Chinese vetoes. It has been used by some states as a justification for intervention and by others as a pretext for inaction. Its underlying claim, that sovereignty is conditional on a state’s treatment of its people, traces directly to the Holocaust and to the proposition that what a state does within its borders cannot be its concern alone.

The denial laws

Many European states have enacted laws criminalising Holocaust denial or trivialisation. Germany, Austria, France, Belgium, Switzerland, Poland, the Czech Republic, Hungary, Romania, Israel and others prohibit denial of the Holocaust or, in some jurisdictions, of any genocide recognised by international courts. The European Union Framework Decision of 2008 requires member states to criminalise public condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes when committed in a manner likely to incite to violence or hatred. The United Kingdom and the United States have not enacted denial laws, on free-speech grounds.

The legal balance between the harms of denial and the value of unfettered speech remains contested. The case for criminalisation rests on the unique status of the Holocaust as a state-organised genocide whose denial is itself a continuation of antisemitic violence; the case against rests on the conviction that bad ideas are best answered with better ones, not with prison cells. Reasonable people, including reasonable Holocaust scholars, have come down on both sides. Deborah Lipstadt, who defeated David Irving in the London libel trial of 2000 and who is one of the most prominent Holocaust historians of her generation, has consistently said she would not have used a denial law against Irving even if one had been available; her view is that bad history is best refuted by good history. Yehuda Bauer has expressed similar reservations. The countries that have enacted the laws have done so because they are constitutional democracies that emerged from Nazi or fascist rule and have made specific public-order judgments about how much oxygen to give the political organising that uses denial as its rhetorical tool. The judgments are political, not historical.

Restitution

The Luxembourg Agreement of 10 September 1952 between West Germany and Israel was the founding document of the modern restitution regime. It committed West Germany to pay three billion Deutschmarks to Israel and 450 million Deutschmarks to the Conference on Jewish Material Claims Against Germany for the support of individual survivors. The figures, in 1952 prices, were enormous. The agreement was opposed by both Israeli and German political opinion at the time; an angry crowd of Jewish protesters threw stones through the windows of the Knesset on the day of its ratification. Subsequent agreements have expanded the categories of eligible recipients. Total payments by Germany have exceeded eighty billion euros and continue.

The other countries have moved more slowly. Austria, after decades of denial of responsibility on the grounds that it had been Hitler’s first victim rather than his accomplice, agreed under American pressure in 2001 to compensation arrangements for slave labourers and to property restitution. Switzerland’s banks settled in 1998 for 1.25 billion dollars after class actions in American courts had threatened a financial crisis. France paid for the role of the SNCF, the national railway, in deportations under a 2014 agreement, after years of campaigning by Serge Klarsfeld and others. Hungary, Slovakia, the Czech Republic, the Netherlands, Norway and other countries have variously legislated property restitution and survivor compensation. Poland, where the largest single number of murdered Jews had lived, has not. The 1998 Washington Principles set the framework for the restitution of Nazi-looted art (see Art Looting and Restitution). The work continues. In 2025 a German court ordered the Bavarian State Painting Collections to return a Picasso looted from a Jewish collector in 1938. Eighty years on, the cases keep coming.

Restitution is incomplete and always will be. No payment can return the dead. What it does is impose a cost. It marks the wrong as a wrong that the state still owes. The fact that the wrongs are still being negotiated eighty years on is itself part of the legacy.

What it adds up to

The legal order built after the Holocaust did not end mass atrocity. It has not stopped genocide in Cambodia, Rwanda, Bosnia, Darfur or any other case in which a state or insurgent movement has decided to destroy a group of its own people. Its courts work slowly. Its prosecutions are selective. Its enforcement depends on the cooperation of states that are often the perpetrators or their allies. The Convention that Lemkin spent his life on has, on the most generous reading, prevented nothing. It has provided the legal framework after the fact in which the killing could be named and some of the killers tried.

What it has done is establish a baseline. After 1945 it became impossible to argue, in any forum that takes itself seriously, that what a state does to its own people is its own concern. It became impossible to argue that following orders excuses participation in mass killing. It became impossible to argue, with any prospect of being heard, that genocide is not a crime, or that crimes against humanity are merely the displeasure of the victors at the conduct of the defeated. The men who built the law from the wreckage of Europe, Lemkin, Lauterpacht, Jackson, Donnedieu de Vabres, Cassin, Trainin, did not eliminate the evil they had seen. They built the language and the institutions in which it could be named, prosecuted, and refused. That is the legacy of the trials. It is not enough. It is what we have.

Lemkin’s grave in Mount Hebron Cemetery in Queens, New York is small and was for a long time unmarked. The Polish writer Anna Bikont visited it in the 2010s and reported that someone had begun, in recent years, leaving stones on it in the Jewish way. The lawyer who had given the world the word for what had been done to his family, and had lobbied alone for years for the law that named it, has now been recognised by the small honours that the work of remembrance throws up over time. The honours are small. The work was the law itself, and that is what survived him.

See also

Sources

  • Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity, Weidenfeld and Nicolson, 2016
  • Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Carnegie Endowment for International Peace, 1944
  • Raphael Lemkin, Totally Unofficial: The Autobiography of Raphael Lemkin, ed Donna-Lee Frieze, Yale University Press, 2013
  • William A. Schabas, Genocide in International Law: The Crime of Crimes, 2nd edn, Cambridge University Press, 2009
  • Antonio Cassese et al., The Oxford Companion to International Criminal Justice, Oxford University Press, 2009
  • Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton University Press, 2000
  • Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice, 4th edn, Penguin, 2012
  • Constantin Goschler and Philipp Ther, eds, Robbery and Restitution: The Conflict over Jewish Property in Europe, Berghahn, 2007
  • Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Viking, 1963
  • Deborah Lipstadt, The Eichmann Trial, Schocken, 2011