Lemkin and the Origins of Article 2(e)

[Kurt Mundorff is author of A Cultural Interpretation of the Genocide Convention and is a Postdoctoral Fellow in the University of Tennessee Knoxville Department of Political Science.]

As Russia’s invasion of Ukraine moved westward, so too did Russian officials who began removing Ukrainian children and transferring them to Russia, often parading the children on television as proof of their success in rescuing Ukrainian orphans. The recent International Criminal Court arrest warrants issued for President Putin and Maria Alekseyevna Lvova-Belova, Russian Commissioner for Children’s Rights, charge these acts as war crimes. However, these acts also amount to genocide and there is increasing political pressure to charge them as such. 

This post sketches the backstory of how the Genocide Convention came to include a prohibition on the forcible transfer of a group’s children. In addition to secondary sources, which are hyperlinked, it draws on archival documents I collected at U.S. National Archives, the UN Archives (NYC) and Raphael Lemkin’s personal papers from the American Jewish Archives and the American Jewish Historical Society. 

Lemkin coined term “genocide” in a 1944 book, Axis Rule in Occupied Europe. He had not thought to include child stealing in this original formulation. But his ideas resonated with UNRRA Child Tracers working in 1946 to return children stolen by the Nazis during World War II. The children had been removed in pursuit of Heinrich Himmler’s scheme to kidnap and “Germanize” children from occupied territories including lands that belong now to Ukraine. 

Himmler had declared in 1941 that “I think it right that young children of especially good race … should be gathered together and brought up by us in special, not too big crèches and children’s homes.” He added that “[h]ealth reasons should be given for taking the children away.”

In 1946, several Child Tracers wrote to Lemkin, bringing his attention to Nazi kidnapping and explaining that “[d]uring the search for these children, horrible crimes done by Germans about looting and kidnapping of children from all nationalities in the occupied countries have been uncovered. The Germans desiring to increase their population committed the most dreadful crimes in human history.”

Lemkin later claimed he had “helped organize the ‘unscrambling of stolen children’” in Europe. Describing the “unscrambling” he said “[t]he children under examination were told a fascinating story in German. In the course of the story-telling, we would switch over into Polish, Czech or other language. If the child would go on listening attentively we knew the child was not German.” He emphasized that “[t]his personal experience with the children prompted [him] to include the stealing of children as a component part of the notion of genocide.”

Lemkin explained that “children can be taken away from a given group for the purpose of educating them within the framework of another human group, racial, religious, national or ethnical.” Providing examples of early Christians, whose children were carried off by Pagans, the children of the Huguenots and Albigenses, Turkish Janissaries, the stealing of Jewish children by the Russian Tsars, and the Mongols, who he said shipped European children to Central Asia where they were educated as Muslims, he argued that “[m]any instances of this type of genocide happened throughout history.” And he wrote that “kidnapping children is a well-known technique of the genocidist. Here we deal not with the destruction or mutilation of the body, but with the disintegration of the ‘national soul’ of children.”

Lemkin claimed he had “worked out the plan which was later accepted, namely, to try the Germans for stealing children.” That trial, United States v. Greifelt, conducted as part of the “subsequent Nuremberg trials” by the United States military under Control Council Law No. 10, centered on Nazi child stealing. Mr. Neely, the American prosecutor in that case, told the court that “throughout this proceeding we shall hear the defendants say how well these children were treated and of the wonderful care afforded them. … But it is no defense for a kidnapper to say he treated his victim well.” 

Greifelt resulted in the first convictions for genocide under international law. It was also the last international trial to address genocidal child stealing. 

The Forcible Transfer of Children in the Drafting of the Genocide Convention

As the trial was underway, Lemkin lobbied to include child stealing in the Genocide Convention. He had included it in the convention’s first draft, the “Secretariat’s Draft,” in article 3 addressing cultural genocide. When child stealing was omitted from the second, Ad Hoc Committee’s draft, he lobbied to reinsert it into the third and final draft, compiled by the Sixth (Legal) Committee. 

During the Sixth Committee deliberations the Greek delegation obliged and proposed adding the child-stealing provision to the list of acts proscribed as genocide. The Greek delegate argued that “[t]he forced transfer of children could be as effective a means of destroying a human group as that of imposing measures intended to prevent births, or inflicting conditions of life likely to cause death,” but Greek objectives were obvious. As Lemkin put it, at that time “some 28,000 Greek children [had been] taken away by the Communist guerillas from their parents in order to be educated in special Communist kindergartens in Bulgaria and Roumania.”

Mr. Maktos, the U.S. delegate, who had emigrated from Greece as a child, provided crucial support to the proposal, stressing “that, in the eyes of a mother, there was little difference between the prevention of a birth by abortion and the forcible abduction of a child shortly after its birth.” Mr. Pérez Perozo, the Venezuelan delegate, a Lemkin ally who played an important role in the convention’s drafting, argued that “the forced transfer of children to a group where they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction of their group, whose future depended on that generation of children.” The Uruguayan delegate argued “there was reason … to condemn measures intended to destroy a new generation through abducting infants, forcing them to change their religion and educating them to become enemies of their own people.” 

Seeking to shield Balkan allies accused of stealing Greek children, the Soviets and their allies opposed the provision. Others criticized the proposed language as vague. Delegates from Siam, Belgium, and Czechoslovakia argued that it was unclear whether the transfers needed to be permanent, or whether temporary transfers were sufficient to trigger culpability. Mr. de Beus of the Netherlands “question[ed] whether forced transfer necessarily meant mass transfer; or the … whether the forcible transfer of children to schools or a different language or religion constituted genocide.” Despite these questions, the Greek “amendment was adopted by 20 votes to 13, with 13 abstentions.” In 1951, Lemkin credited “[t]he existence of this provision [for helping] the partial repatriation of Greek children from Yugoslavia to Greece.”

Conclusion

Article 2(e) is neither “enigmatic” nor “out of place” in article 2, as some scholars have claimed. The UN Genocide Convention was enacted “to safeguard the very existence of certain human groups” and lists “forcibly transferring the children of the group to another group” co-equally with “killing members of the group” as one of the five acts of genocide. Culpability for genocide accrues when a perpetrator intentionally commits one of the five genocidal acts against a protected group, with the further intent to destroy that group. As the Genocide Convention’s drafters realized, taking a group’s children is as effective a way of destroying a group’s existence as is killing its members. 

Moreover, the forcible transfer of children should not be excused as an act “cultural genocide.” As I argued in my 2020 book, the idea that the Genocide Convention does not reach otherwise prohibited acts of genocide when they are intended to destroy a protected group’s cultural existence – rather than its material existence – goes against logic, the convention’s drafting history, and accepted treaty-interpretive rules. 

In a 1949 letter seeking the support of the International Union for Child Welfare Lemkin argued that “the stealing of children has been repeated throughout history in all cases of Genocide…”  Recent events prove the wisdom of his insight. 

The evidence is clear that Russia is removing children to estrange them from their Ukrainian roots and that these removals are intended to further Putin’s goal of destroying Ukraine’s existence as a distinct political and cultural entity. Ukraine has granted the ICC jurisdiction over events on its territory and the prosecution of genocide is part of its mandate, so we would expect Russian officials to be wary of violating this provision of the Genocide Convention. 

However, far from chastened, Ms. Lvova-Belova responded to news of her ICC arrest warrant by saying “It is great that the international community has appreciated the work to help the children of our country, that we do not leave them in war zones, that we take them out, we create good conditions for them, that we surround them with loving, caring people.” Unenforced laws are unlikely to create deterrence and until the international community takes this sordid act seriously, there is no reason to believe perpetrators like Ms. Lvova-Belova will.