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Counsel for Humanity

Pádraig McAuliffe

East West Street, by Philippe Sands, Weidenfeld & Nicolson, 496 pp, £9.99, ISBN: 978-1474601917

Williams Faulkner’s famous adage that “The past isn’t dead. It isn’t even past.” is one that has become trite through repetition. Observers of an increasingly populist and nationalist Eastern Europe in the last few years can, however, be forgiven for intoning it in those moments where dismay gives way to reflection. In February of this year, the Polish senate passed a bill proposed by the country’s ruling Law and Justice party criminalising any mention of Polish people “being responsible or complicit in the Nazi crimes committed by the Third German Reich” and reserving the most punitive penalties for those who refer to Nazi-era concentration camps as “Polish death camps”. These laws fly in the face of well-documented complicity in the Holocaust by some (though certainly not all, or most) Poles, and have been seen as epitomising a resurgent tendency to downplay historical antisemitism in Eastern Europe.

When he set out to write it, Philippe Sands could have had little reason to believe that East West Street, a work that traces how two Jewish lawyers emerged from what is now the Ukrainian city of Lviv (formerly Habsburg Lemberg, formerly Polish Lwów – for the sake of convenience Lemberg will the employed for the rest of this essay), could have as much contemporary purchase on patterns of revived nationalism in Eastern Europe. State-sanctioned minimisation of the Holocaust of any stripe would have seemed unthinkable less than a decade ago. Sands appears more motivated by two other impulses far removed from the tumult of current affairs. The first is a scholarly curiosity fired by the coincidence that Hersch Lauterpacht and Raphael Lemkin, two of the most formative influences on the field of international criminal law, in which Sands has distinguished himself professionally, both spent crucial formative periods in Lemberg. Though Sands notes the retrospectively astonishing fact that apparently no one in the city had ever even noticed this parallel, Lauterpacht’s and Lemkin’s mutual origins are not purely coincidental or trivial. As this book makes clear, their convictions about law’s role in the protection of individuals and groups were decisively shaped by their experiences as part of the embattled Jewish minority at the interstices of first the Habsburg and Russian empires, then the Polish and Ukrainian nationalist projects, and then the intermarium between the Black Sea and the Baltic carved up by the Molotov-Ribbentrop pact in 1939. The second motivating impulse, sensitively interweaved with the first, is that of family memoir, as Sands traces how his own family, originating in the same area, was shaped by the pressures of the Holocaust.

Sands makes a compelling argument for Lemberg as a microcosm of the twentieth century. When the book starts, the city is a cultured outpost of the Habsburg empire’s rich Mitteleuropean culture, the culture of Robert Musil, Joseph Roth, Sigmund Freud, Gustav Klimt and Gustav Mahler, a university city where both men would settle and study for a time. A municipality tolerantly mixing Poles, Ukrainians and Jews before World War I would, however, be dramatically shaken by insecurity and ethnonationalism. Lemberg would change hands eight times between 1914 and 1944. At the Versailles peace negotiations after the Great War, Poland’s independence was finally secured from the defeated Habsburg, Romanov and Hohenzollern empires, but under the proviso that it would protect the rights of minorities like Jews and Ukrainians within the territory “without distinction of birth, nationality, language, race or religion”. These provisions were furthermore made “obligations of international concern” to be safeguarded by the nascent League of Nations. It was apparent even at Versailles that the large colonial powers emerging from the war were unwilling to enforce these protections (predictably Britain was fearful that the League might assume a protective role towards the Irish still under their rule). A slow but steady polonisation of the city occurred ‑ in a border city, Jews and Ukrainians were deemed to constitute a potentially dangerous fifth column in the emerging national state. The German army invaded Lemberg as part of its invasion of Poland in 1939, retreated once the Molotov-Ribbentrop pact was signed, and returned a couple of years later in Operation Barbarossa. The city came under the jurisdiction of the brutal Generalgouvernement regime of Hans Frank until the Red Army rolled Hitler’s forces back. The Janowska labour, transit and extermination camp was established by the Germans on the outskirts of the city. Over 100,000 people are believed to have passed through the camp, with an estimated 35,000-40,000 victims murdered there.

This history formed the background to the lives of the men East West Street explores and shaped their distinct responses to the atrocities they eventually fled. Lauterpacht, born in 1897, lived in the nearby town of Żółkiew before moving to Lemberg for a better education in 1910. The relatively well-to-do Lauterpachts thrived in the provincial cosmopolitanism of Lemberg. After a brief period in the army, the eighteen-year-old Lauterpacht enrolled in the law faculty at the university. By this point, hostilities had broken out between Ukrainians and Poles after the former established Lemberg (as Lviv) as the capital of the ultimately evanescent West Ukrainian People’s republic. Lauterpacht had joined a Jewish people’s militia to protect his community from the serious violence that occurred during this conflict. After Lemberg was secured for Poland, the government in Warsaw began to erode the 1919 treaty that afforded international legal protection to minorities on the basis that if other countries refused to lend enforceable protections to their minorities, Poland should not have to abide by the bespoke Versailles protections it initially accepted. Ultimately Lauterpacht was forced to complete his studies in Vienna after the new Polish administration of the university “closed its doors” to the Jews of East Galicia.

The failure of Poland’s group-based minority rights regime and the antisemitism Lauterpacht suffered in Lemberg and later in Vienna had a powerful catalysing effect on his jurisprudential inclinations. He began to first internalise and then propagate the then controversial idea that individuals had inalienable constitutional rights enforceable against the state that abused them or failed to protect them against abuse. Though the realist Lauterpacht realised that under the law as it stood a state like Poland, the USSR or Germany could persecute anyone within its territory, he began to articulate the revolutionary argument that international law could and should place limits on the heretofore sacrosanct sovereignty of the state. Notwithstanding the fact that he taught international law at the London School of Economics from the mid-20s and became a professor of international law at Cambridge in 1937, Lauterpacht would have limited opportunity to bring to fruition his idea of an international law that would protect fundamental individual rights until the end of World War II, when the Yalta meeting between Churchill, Roosevelt and Stalin confirmed that Nazi leaders would be treated as criminals and prosecuted. By this point, Lauterpacht had published a seminal book on the need for an international bill of the rights of man, the language of which echoed that of the incipient postwar order the Allies would institutionalise in the United Nations Charter. The international community by now realised that persecution in the domestic territory could serve as the canary in the coalmine for larger epochal conflagrations. Robert Jackson, the US prosecutor charged with rendering accountability for Nazi crimes, turned to Lauterpacht for assistance in the forthcoming Nuremberg trials. Lauterpacht introduced what would become his most lasting contribution to the emergent field of international criminal law, namely the category of crimes against humanity contained in Article 6 of the Nuremberg charter to cover atrocities against individual citizens of the sort he witnessed in his Lemberg youth. This marked the end of the historically entrenched position that states were free to kill, torture or persecute their own nationals behind the veil of sovereignty. Lauterpacht also helped in the trial preparations and the British arguments to be used to prosecute twenty-four Nazi defendants, one of whom was the aforementioned Hans Frank, whose Holocaust round-up ensnared Lauterpacht’s parents and extended family. All of Lauterpacht’s work on the Nuremberg trials was done in the context of complete uncertainty about whether or not any of his family had survived ‑ in the end only one niece emerged from German occupation alive. Building on Lauterpacht’s ideas, the British prosecutor Hartley Shawcross established the norm of individual criminal liability by dismissing for once and for all the defence argument that only the state and not the individual could commit a crime under international law.

Raphael Lemkin was three years younger than Lauterpacht and his approach to mass atrocity was no less shaped by his background. He initially came from what is now the town of Azyaryska in Belarus, the son of a Jewish farmer who had to pay bribes to tsarist officials to circumvent laws prohibiting Jews from owning land. Pogroms in nearby Białystok killed over a hundred people when he was six. After moving to another farm in the town of Wołkowysk in 1910, Lemkin became Polish after World War I and spent his formative years in the same atmosphere of febrile antisemitism that Lauterpacht did. Like Lauterpacht, he spent time at Lemberg university (and was even awarded his doctoral degree by the man who taught Lauterpacht criminal law), but arrived two years after the older man left. The massacre of 1,200,000 Armenian Christians in 1915 was a key moment for the young Lemkin ‑ he was outraged that no treaty existed to prevent Turkey from persecuting its own citizens, that sovereignty could serve to buttress a state’s claim to kill its own citizens. Believing that the group was more valuable than any individual, he resolved to make the development of rules to protect the life of collectivities of people through criminal law.

Having settled as a lawyer in Warsaw, he had a hair-raising escape from the Nazi invasion in 1939 and eventually settled in the US via Sweden. From this point on, he began to collect and collate Nazi decrees and ordinances, and was among the first to detect the “concentrated plot” to destroy the peoples over whom Germany had taken control like Jews, Gypsies and Poles through status definitions, sequestration of property, prohibition of movement, ghettoisation and then mass transport to camps. He concluded that Germany’s war was actually directed towards changing the population structure of Europe via the destruction of distinct peoples. In his book Axis Rule in Occupied Europe, he coined the word genocide (from the Greek genos, meaning “tribe” or “race”, and the Latin cide, meaning “killing”). Lemkin started working for Jackson’s War Crimes Office, but his expertise about German crimes was overshadowed by his personal eccentricities and inexperience, and he became marginalised in the US trial effort. Nevertheless, his extraordinary persistence, which Sands chronicles very well, meant that his novel concept of genocide made it into the indictment in count three on war crimes. Even then, the concept of genocide was given relatively short shrift by the prosecutors, going unmentioned over 130 days of hearings. While his American colleagues largely ignored genocide, it did find its way into closing statements by the British, Soviet and French prosecutors. True vindication for Lemkin’s work would have to wait until after the trials. In the aftermath of Nuremberg, he prepared a draft international convention on genocide, traversing the globe to convince governments to support and adopt it. In 1948 the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, and since then the convention has supplied the means by which we instinctively conceptualise atrocity in the likes of Rwanda, Cambodia and Myanmar.

As these potted biographies make clear, a shared geographical background on an ethnic fault-line and a shared academic background in the (inconsistently) cosmopolitan law schools in Lemberg means that Lauterpacht and Lemkin were clearly shaped by similar socio-political and intellectual forces. Notwithstanding their evidently shared conviction that law could restrain barbarity, Sands is fascinated by the different conclusions they drew from the traumas they suffered and witnessed. Lauterpacht focused on crimes against humanity, oriented towards the protection of the individual, while Lemkin concentrated on the patterns of homicidal elimination of peoples he would label genocide. Sands argues that the failure of the Polish Minorities Treaty determined Lauterpacht’s tropism towards the individual. It strikes him “as being connected to what he experienced in Lemberg, on the barricades, observing for himself how law’s desire to protect some groups ... could create a sharp backlash. Poorly crafted laws could have unintended consequences, provoking the very wrongs they sought to prevent.” Lauterpacht resolved to use law to protect each and every individual regardless of group affiliation. Indeed, in his gently scathing review of the book in which Lemkin first outlined the concept of genocide, the always more academically established Lauterpacht argued that group protections would undermine individual protections and prove impractical on the basis that it would be extremely difficult to prove intent to destroy a group. Along similar lines, others at the time argued that Lemkin was unwittingly falling into the type of “biological thinking” that underpinned group-based persecution. Less creditably, opponents of the concept realised it could be turned against the major powers in relation to the treatment of their own minorities or colonial subjects. Lemkin’s reaction to the relative exclusion of genocide from Nuremberg and exclusion of crimes committed before the war was one of devastation. Though far from opposed to individual rights, he believed, as Sands explained, that “an excessive focus on individuals was naive, that it ignored the reality of conflict and violence: individuals were targeted because they were members of a particular group, not because of their individual qualities”. On this view, it is only with attention to group status that the racial motivation and intent to destroy whole cultures can be fully understood.

Sands doesn’t probe these differences too deeply ‑ both men left a voluminous legacy of writing that aptly explains why they reached the conclusions they did. He does, however,  point out the contrast between the emotionalism and passion of Lemkin, which always made people feel awkward around him, and the patrician calm of Lauterpacht, who emerges as supremely at home in relatively clubbable academic, national and international institutions. It is enough that Sands points out their common intellectual roots in the insecurity of Lemberg. As such, his book makes an excellent companion piece to James Loeffler’s more recent Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (its prologue is titled “A Pogrom in Lemberg” and Lauterpacht is one of five Jews he studies). Loeffler too highlights the relevance of the political and cultural insecurities of post-World War I Eastern Europe and debates over minority rights to those Jews who would work as legal advisers for their host governments to catalyse the entirely new concept of global consciousness and human responsibility we call human rights.

While Sands is troubled by the informal hierarchy that emerged after the war, where genocide emerged as the crime of crimes and crimes against humanity came to be deemed a secondary alternative form of liability (over the course of the twentieth century, we might say the tortoise Lemkin edged out the hare Lauterpacht by a nose) and its tendency to concretise divisions between groups, the more troubling thing is that neither definition of crime has had the deterrent effect that both men assumed criminalisation would have. The explicit and implicit debates between the two were sharpened by the legalist expectation that international law could affect state behaviour. Postwar occurrences in Cambodia, Vietnam, Iraq, Syria and Palestine, among others, and the ongoing crisis of relevance suffered by the International Criminal Court, serve as evidence that normative change by no means presages improved behaviour by the state or international community.

For all their distinct differences in emphasis, the concepts outlined by Lemkin and Lauterpacht remain more complementary than rivalrous. They testify to the necessity for people(s) to enjoy rights owed to humanity itself regardless of where they might live and under what manner of government. This necessity is made most apparent by two other individuals Sands concentrates on in the book. The first is Sands’s maternal grandfather, Leon, a man whose life is a panorama of twentieth century Jewish life. Born in Lemberg when it was a mixed Jewish-Polish-Ukrainian city and returning when it was firmly Polish, he moved to interwar Vienna as a distiller of spirits with his own shop and enjoyed a life of contented assimilation. After the Anschluss (annexation by Germany) in 1938, he fled to France, leaving wife and daughter behind (the author’s speculation over why this was so is a never fully resolved but rather a compelling mystery threaded throughout the book) to later fight with the French resistance and then move to London. The young Sands was intrigued by his grandfather’s silences about the past, but in the course of his researches he learns the truth: “every single person from his childhood, each and every member of the extended Galician family of Buchholzes and Flaschners was murdered. Of the seventy or more family members living in Lemberg and Żółkiew when the war began, the only survivor was Leon.” His grandmother died on the same street in Treblinka as members of Lemkin’s family.

The other person Sands examines in the book is Hans Frank, governor of the territory in which Lemberg was located and a Nazi lawyer opposed to the Jewish “jurisprudence of decadence” we can assume Lauterpacht and Lemkin would have symbolised for him were Frank aware of them. He volunteered his Generalgouvernment’s full participation in the Holocaust and was aware of all activities of the Einsatzgruppen dath squads in Poland. Lauterpacht’s family was rounded up in Lemberg a week after Frank visited the city, with sanction given by him in the complete but mistaken belief there would be no accountability. No less cultured that Lauterpacht or Lemkin, Frank inhabited a different moral universe. Sands’s treatment of his trial at Nuremberg where he mixed fulsome confessions with cynical pleas of mitigation, is a compelling treatment of one of the lesser-known criminals in the Nazi firmament. The trials brought little consolation to Lauterpacht, Lemkin or Leon, making East West Street a compelling but tenebrous endeavour, a deeply pronounced chiaroscuro in which we see dramatic contrasts of light and shade, but where darkness becomes the dominating feature.

1/12/2018

Dr. Pádraig McAuliffe is Associate Head & Senior Lecturer,  School of Law & Social Justice University of Liverpool.

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