June 05, 2018 ILN Winter 2018

Book Reviews—East West Street by Philippe Sands and Holocaust, Genocide, and the Law by Michael Bazyler

Reviewed by Lawrence G. Albrecht

East West Street

By Philippe Sands (Penguin Random House, 2017)

Professor Sands’ book focuses on two foundational architects of international human rights law, Rafael Lemkin and Hersch Lauterpacht, in the context of the Holocaust and subsequent Nuremburg prosecutions. Both studied law at Lviv University, a community that deeply resonates in Sands’ narrative because his grandfather was born in Lviv (also known as Lwów, Lemburg, or Lvov depending on the “blurred borders” of historical political control). Despite their shared academic background, complex legal analysis separated their two competing legal approaches to the Holocaust. Lauterpacht was later influenced by his law professor in Vienna, Hans Kelsen, who strongly valued state authority but grounded democracy in the power of judicial review. Lauterpacht was profoundly committed to protection of individuals from state violence, but believed that both prior and proposed international legal efforts designed to expand individual legal protection to encompass minority groups’ rights were neither philosophically sound nor functionally pragmatic. Lemkin, however, in his ground-breaking 1944 book, Axis Rule in Occupied Europe, advanced the express legal protection of minority groups from targeted crimes which he named genocide. Lemkin worked ceaselessly for prosecution of this new international crime, genocide, to redress crimes committed against Jews and other ethnic and religious groups of persons, whereas Lauterpacht emphasized the incremental but significant expansion of legal principles supporting criminal prosecution of mass crimes against humanity. Their respective intersecting and separate legal philosophies and personal narratives weaved by Sands are emotionally gripping and are framed in the broader international legal and political tensions confronting their respective visions.

Sands also intertwines the complex story of Nazi war criminal Governor-General Hans Frank, a leading jurist of National Socialism, who acted within Nazi law against the rights of both individuals and groups in ideological and murderous support of the omnipotent authority of the all-powerful State.

Sands’ narrative reaches an important intersection with the Nuremberg prosecutions beginning in October 1945. While Lauterpacht was a key legal strategist and contributor to the prosecution team, Lemkin, mostly off-scene, nervously fretted over his limited success in introducing the novel and controversial crime of genocide into the criminal proceedings. One specific consequence was that Franks, the legal administrator who oversaw the extermination of over one million Jews in the Galicia region, including its capital Lviv, was convicted of crimes against humanity, though not genocide. Nevertheless, he was hanged. Significant evidentiary and political obstacles remained before genocide would be fully incorporated into international criminal law. On December 9, 1948, the U.N. General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which ushered in a new era of human rights enactments. Passage followed detailed groundwork by the General Assembly in 1946 and adoption of Resolution 96, which expanded upon the limited judicial introduction of the crime of genocide at Nuremberg and expressly declared that genocide is a crime under international law. Lemkin worked ceaselessly for international adoption of the Convention until his death in 1959. (The United States, however, did not become a party until 1988—forty years after its creation.) Separately, Lauterpacht’s work was instrumental in the General Assembly’s adoption of Resolution 95 which affirmed the crimes against humanity principles embedded in the Nuremburg Tribunal charter. Individual rights under international law were now black letter law. Ensconced again at Cambridge University, he worked on An International Bill of the Rights of Man which influenced the General Assembly’s adoption of the Universal Declaration of Human Rights on December 10, 1948, which became legally binding in the European Convention on Human Rights signed in 1950 and created the first international human rights court. In 1955, he became the British jurist on the International Court of Justice in The Hague. The respective parallel, though conflicting, dedication of Lemkin and Lauterpacht, and so many lesser publicized human rights jurists, professors, politicians, and advocates resulted in the current regime of criminal tribunals, and the broad expansion of human rights law doctrines and enforcement mechanisms. Sands’ comprehensive historical and political setting poignantly resonates today as the international community strives to confront multi-faceted manifestations of human rights abuses.

Holocaust, Genocide, and the Law: A Quest for Justice in a Post-Holocaust World

By Michael Bazyler (Knopf, 2016; Oxford University Press, 2016)

Professor Bazyler’s book addresses three primary subjects: the Holocaust as “a legal event,” post-Holocaust criminal and civil proceedings within the development of internationally created judicial structures and courts, and the significant resulting precedent and policy developments relevant to future prosecution of genocide and human rights abuses. Bazyler presents a brilliant ground-breaking legal history of genocide in the 20th century, including the often overlooked German massacre of Herero and Nama ethnic group members in Namibia (between 1884 to 1914 known as the German colony of South-West Africa), the Armenian genocide under the Turkish Ottoman Empire, and the Holocaust’s legal foundation cemented by the Nuremberg laws of 1935 and subsequent racist Nazi laws. His profound academic analysis of the Holocaust as proceeding within German law, which reflected the triumph of positive law over natural law, is both comprehensive and enlightening, and is certain to stimulate contemporary academic and legal debate (just as occurred in South Africa post-WWII where legal scholars debated whether apartheid law was really law and worthy of obedience). In the context of analyzing Holocaust law (sic), Bazyler also revisits the subsequent famous Hart-Fuller debates regarding “what is law?” which ever resonates. The recognition of law as a source and instrument of evil is a powerful undercurrent throughout Bazyler’s theme which thoughtful readers will recognize as still relevant today regarding, for example, the legal treatment of minority groups, immigrants, and refugees in many countries.

Bazyler’s analysis of selected post-Holocaust criminal accountability proceedings often parallels Sands’ work, although Lauterpacht is absent in his history. Bazyler’s recital of the Nuremburg legacy cannot be easily circumscribed because the post-WWII era ushered in international criminal courts and tribunals, legal doctrines such as universal jurisdiction, expansion of human rights law, and unprecedented advocacy by NGOs and human rights organizations as a direct consequence of public support from diverse interest groups which had fused in the Nuremburg proceedings and its aftermath. One recent pertinent development he addresses is the Canadian-born responsibility to protect (“R2P”) civilians doctrine, adopted by the United Nations Security Council, which authorizes U.N. placement of personnel in multiple countries, including the 17,000 peacemakers currently in South Sudan. Bazyler also specifically addresses the contemporary impact of the Nazi legal theorist Carl Schmitt’s doctrine of the “state of exception,” which buttresses uberpowerful state executive power in times of crisis. Bazyler analyzes prominent U.S. Supreme Court post-9/11 cases, which he wistfully concludes cabin the President’s powers. But he laments the recent Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) decision, which rejected universal jurisdiction principles statutorily circumscribed in the Alien Tort Statute, 28 U.S.C. § 1350 (2006).

Concluding Thoughts

Together, both books offer a chronological and comprehensive narrative of the unprecedented work of the international legal community to prosecute and redress genocide and crimes against humanity, institute international civil law victims’ compensation proceedings,123 as well as domestic legal structures and venues for victims.

Perhaps governmental impunity and individual immunity from justice are, indeed, no longer nearly sacrosanct legal doctrines, despite plenty of evidence to the contrary embedded in contemporary international human rights catastrophes (such as the use of chemical weapons in Syria, which have been banned ever since the Hague Convention of 1899). However one judges the contemporary international legal culture, the intersections and divisions in the legal thinking of these two foundational architects during and after the Holocaust continues to frame international criminal and human rights law. Both books deserve deep accolades for their respective contributions made to our understanding of the origins of contemporary human rights law. No doubt the pursuit of justice for human rights victims will be never-ending. But, as Thomas Buergenthal, a former International Court of Justice judge and distinguished human rights professor positively noted in his address at Marquette University Law School on March 23, 2017: “Things are happening.” An expression of optimism from the author of A Lucky Child, who was born only a few hundred miles from Lviv and survived Auschwitz as a child.