September 2016

Arts & Letters

The secrets of others

By Martin Krygier
Philippe Sands’ ‘East West Street’ mixes memoir, biography and thriller to explain the origins of ‘crimes against humanity’ and ‘genocide’

Lemberg, Lwów, Lvov, Lviv. Once you know they are place names, it sounds like a lot of travelling, but they are all the same city, buffeted by shifting borders: Polish Lwów before the 18th century and again between world wars, Lemberg under the Austro-Hungarian Empire until 1918 and again under Nazi occupation, Lvov when the Soviets displaced the Nazis, and now Lviv, in recently independent, but troubled, Ukraine. The instability of names registers the city’s painful and volatile history. With each change before the most recent, whole groups were persecuted and masses of individuals were killed.

In 2010, Philippe Sands, an eminent British human-rights lawyer and academic, was invited to speak in Lviv about his work on crimes against humanity and genocide. He was intrigued, partly because his maternal grandfather, Leon Buchholz, had come from there. He became even more curious when he realised that the two lawyers who originated the concepts he was to speak on also spent seminal periods of their lives there. One, Hersch Lauterpacht, made the case for recognition of “crimes against humanity” in international law; the other, Rafael Lemkin, coined the term “genocide”, and pleaded that it be recognised as a specific crime. Both had studied at the university that invited Sands, though they never met. Sands’ hosts had no idea that the subjects they had chosen for the lecture were both invented by their alumni.

Coincidences did not end there. Lauterpacht was born at the east end of a street in a nearby town (the “East West Street” of the book’s title); Sands’ great-grandmother had lived at the other end. At Lemberg/Lwów Law School, Lauterpacht and Lemkin were taught and influenced by some of the same teachers. (One taught Lauterpacht Austrian criminal law; he then re-skilled, and taught Lemkin Polish criminal law in the same room.) A few years later, Lauterpacht was studying in Vienna, where he was active in Jewish student affairs, among them helping run a dormitory for Jewish students. The dormitory’s housekeeper was one Paula Hitler, whose brother Adolf, in 1921 not yet universally known, paid a social call. More significantly, like so many others, including Sands’ grandparents, Lauterpacht and Lemkin were propelled west by the same convulsions, and scarred by the same horrors, of the first half of the last century. They never returned.

East West Street: On the origins of genocide and crimes against humanity (Weidenfeld & Nicolson; $32.99) is born of Sands’ visit to Lviv and what it drove him to discover. The book is an intriguing mix of memoir, biography, thriller and legal disquisition, each part enriching and informing the others. Its major characters are Lauterpacht, Lemkin and Leon Buchholz. And one more: Hans Frank, who as Nazi governor of occupied Poland liquidated, among millions of others, all the Jews of Lemberg. Frank was tried at the Nuremberg war crimes trials of 1945–46 and executed.

Lauterpacht was in courtroom 600 of the Nuremberg Palace of Justice when Frank and the other defendants were tried; Lemkin listened on the wireless from a sickbed in Paris. Only at the end of the trial did they learn that among Frank’s accomplishments was the extermination of almost every one of their relatives. Leon’s extended family, at least 70 members, perished as well.

Lauterpacht and Lemkin came to compete (unequally) for influence over the Nuremberg trials. One argued for the acceptance in law of crimes against humanity, the other of genocide.

It is common today to elide the two concepts, and they do certainly overlap in the most terrible ways. However, Sands stresses that they point in very different directions. Both Lauterpacht and Lemkin agreed that international law needed to recognise crimes by and against persons, whereas traditionally it had been almost exclusively limited to acts by and against “sovereign” states. But was the crime to be conceived as the killing of individuals, in this case in their millions, or was there something special going on, an attempt to exterminate entire social, cultural and religious groups?

Well before World War Two, Lemkin came to believe that international law needed to recognise a crime focused on the persecution of whole peoples, among them his own. He insisted that “genocide” was something more and something else than the persecution of individuals, though that was what it inevitably involved. For him, mass killings were of course criminal acts in themselves but “genocide” needed to be recognised as a distinct crime, particularly since such group-exterminating intent fuelled some of the worst contemporary conflagrations. Killings are omnipresent in human history; genocide is not. From the 1920s, Lemkin began to document the infernal logic behind genocidal activities, hitherto rarely recognised as elements of a distinctive overarching enterprise with a particular purpose: to exterminate a people. Examples soon multiplied all around him.

Lauterpacht read the same facts differently. He drew from early experiences of group-based conflict – in Lemberg, then in Vienna, and then everywhere – the conclusion that individual rights were sacrosanct. He worried that “if one emphasises too much that it is a crime to kill a whole people, it may weaken the conviction that it is already a crime to kill one individual”. Further, Sands conjectures, Lauterpacht became convinced that criminalising the persecution of groups might solidify enmities and generate backlash against the members of precisely those groups it was supposed to protect. Lauterpacht had lived surrounded by multicultural tensions in Lemberg/Lwów, and was unimpressed by the Minorities Treaties imposed after World War One, which sought to protect minority groups but ultimately inflamed nationalist resentment against them. And as a profoundly practical and lawyerly lawyer, he was sceptical of concepts that depended on elusive and hard-to-establish intentions, rather than empirically identifiable acts.

In Lemberg, in Vienna, and later in Britain, where he found refuge and became professor of international law at Cambridge, Lauterpacht was quickly recognised as a prodigy. He influenced the British and American conduct of the Nuremberg trials significantly, and wrote large parts of the British indictment. He had the ear of the American prosecutor, Robert Jackson, and the British team as well. The impassioned, persistent, annoying outsider Lemkin had a harder time. The book is replete with examples of Lauterpacht’s welcomed influence and Lemkin’s frustrated marginalisation. Lauterpacht’s “crimes against humanity” became grounds for conviction of several leading Nazis. Despite Lemkin’s urgings, and although the term was invoked by prosecutors at Nuremberg, no one was convicted of genocide, and it did not make it into the UN Charter. As Sands puts it, “The word was unspoken.” Lauterpacht was satisfied, Lemkin devastated.

Posterity evened things up. The Genocide Convention was adopted in Lemkin’s lifetime, and, as Sands writes, “over time genocide emerged in the eyes of many as the crime of crimes, a hierarchy that left a suggestion that the killing of large numbers of people as individuals was somehow less terrible”. Lauterpacht would have been disappointed, and the lawyer and moral witness Sands has some wise cautions about the costs of this turn of events. But is it not naive and misleading, as Lemkin believed, to ignore intentions so palpable and so pervasive, which are the malignant wells from which these horrors sprang? The arguments on both sides are considerable, and the debate will not end soon.

East West Street, then, does what its subtitle promises: explore the origins of two concepts that have enriched and complicated the legal and political morality and rhetoric of the past half-century. But for all their legal significance, these are not arcane technicalities nor this book a legalistic yawn. The concepts and the book speak of horrors whose victims (let alone perpetrators) are reluctant to speak. And such reluctance is not without effects, either on them or on those who come after them. Lauterpacht’s whole family had been murdered, but he never spoke of it to his only son, Elihu, now also a distinguished Cambridge international lawyer (and, again coincidentally, once Sands’ teacher, then colleague, now friend). And, as Sands writes of his grandfather, “for the most part Leon locked the first half of his life into a crypt”.

The book is prefaced with a psychoanalyst’s epigram: “What haunts are not the dead, but the gaps left within us by the secrets of others.” One quickly comes to realise that Sands’ visit to Lviv spurred in him a kind of noble obsession to fill those gaps: in the stories of his grandparents’ and mother’s lives, in those of Lauterpacht and his family, of the solitary (but also noble) zealot Lemkin, and of the highly cultivated mass murderer Hans Frank, who played piano skilfully, stole artworks voraciously and ordered the murder of millions enthusiastically. Of course, Sands’ subjects are important for us all, but his motivations, his quest and his book are, equally, intensely personal.

Sands is not merely a lawyer, but a remarkable sleuth: poring over old bits of paper, photographs, documents and maps, discovering unknown and implausible actors, informants and information, unearthing fact after unknown fact, in ways frequently surprising to him, and quite astounding to me. The book tells us not only what Sands found but also how he went about looking, and the hunt is often as absorbing as the catch. He keeps coming up, by means that no one would think of, with people of whom no one knows, or not in this context, and not for these things.

One figure, for example, whose story he tracked down from a single unadorned address on a yellow scrap of paper, was the English missionary Miss Tilney of Norwich, who saved souls in Africa, and happened determinedly to save his year-old mother and others from the Nazis in Vienna in 1939, as one does.

Another surprise, and a major source of morally sound, if tormented and hard-won, reflection on Hans Frank, “The Butcher of Poland”, is Frank’s clear-eyed son, Niklas, a successful German journalist, with whom Sands comes to develop a friendship. (Sands has recently made a documentary, What Our Fathers Did, about Niklas and another Nazi son, Horst von Wächter, who still seeks excuses for his own father, the Lemberg-based Nazi governor of Galicia.)

Apart from the book’s tales, there is the telling. Sands is a writer of distinction. The reader’s attention is never diverted, even as Sands weaves his myriad strands and clues and loose ends into a coherent, if often dispiriting, pattern. He does this with rare skill, and also with dignity and insight. East West Street is a rich, moving and rewarding work.

Martin Krygier

Martin Krygier is a professor of law and social theory at the University of New South Wales. He is the author of Civil Passions: Selected Writings, a collection of essays. He also writes extensively on issues of political and legal theory and morality, and central and eastern European politics and law.

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