Posted by: Lisa Hill | March 15, 2018

East West Street, On the Origins of Genocide and Crimes Against Humanity, by Philippe Sands #BookReview

I am indebted to my good friend Janine Rizetti for bringing this important book to my attention.  Janine reviewed it on her blog The Resident Judge of Port Phillip and I reserved it at the library straight away. Written by the high profile international lawyer Philippe Sands,  East West Street , On the Origins of Genocide and Crimes Against Humanity won the 2016 Baillie Gifford prize (which used to be the Samuel Johnson Prize) and by coincidence I read it in a week where Australia’s high profile international lawyer Geoffrey Robertson was in town spruiking his memoir about his work in human rights.  In a further coincidence, in the same week I received a letter from Israel in reply to my appeal on behalf of a Palestinian dissident whose detention seems onerous and whose trial has been far too long in coming.  Yes, even in complacent suburban Melbourne, attention can be paid to human rights by obscure citizens like me. (Join PEN if you want to do it too.)

East West Street is not a book that purports to explain the reasons for genocide or crimes against humanity.  It’s about charting the course of the legal development of these crimes.  Sands personalises it with the story of his own family, some of whom made it out of Nazi Germany just in time, and others he had not known about because his grandfather, Leon Buchholz, never spoke of their murders.  But that is not the main focus of this book.  It’s really about the two men who worked long and hard (and not in cooperation with each other) to bring crimes against humanity and the crime of genocide into international law during the Nuremberg Trials and the formative years of the United Nations.

(Readers of this review will have to forgive my fascination with jurisprudence.  I had a brief flirtation with an LLB at the University of Queensland and though I ultimately decided that I did not want to switch careers to one involving lawyers, I retain an abstract interest in the intellectual gymnastics that lie behind the development of laws.)

International law for the protection of minorities became a focus in the wash-up of WW1.  Until then any country could treat those living within its borders as they pleased.  But the Polish Minorities Treaty was imposed on the newly constituted independent state of Poland to protect the rights of its citizens who were a mix of Poles, Ukrainians and Jews, and that was the first time that a nation’s sovereignty was subject to international law in this way.  The concept had surfaced before (in the context of the murder of Armenians in Turkey in 1915), but it had never been legally binding.  A young Jewish lawyer called Hersch Lauterpacht who lived in the same Polish city as the author’s grandfather became interested in this issue and its complexities: he thought that it was important to protect the rights of minorities to speak their own language and educate their children in special schools, but he worried that the concept of a group identity could also foster the dangers of nationalism.

German atrocities in WW2 brought the issue to the fore.  At Yalta, Churchill, Roosevelt and Stalin agreed that German leaders would be prosecuted and the Four Powers (UK, US, France & the USSR) had to agree about how this would be done.  They had to agree on basics like which legal system to use – because judges in the French system do the cross-examination whereas in the US & UK, it’s prosecutors who do it and judges have to keep out of it.  The Four Powers also had to agree on what crimes the defendants were to be charged with.  These issues were resolved by deciding that new terms were needed: the crime of war; war crimes; and crimes against humanity. There would be eight judges, two from each of the four Allies, and each of the Four Powers would also nominate a prosecutor.

Lauterpacht had got out of Germany in time and was a Cambridge academic by then, and he was influential in the spirit and the wording of Article 6(c) of the Charter which gave the Nuremberg Tribunal power to punish individuals who had committed crimes against humanity, defined to cover:

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecution on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. (p.112)

You will have noticed that I have highlighted the colon in red.  After the Charter was adopted, a discrepancy in this Article was noticed.  The Russian translation had a comma instead of the colon in the French and English version.  The punctuation was changed to a comma in the French and English versions, giving rise to the ambiguity over whether this Article allows jurisdiction over crimes against humanity before the war started.  That is, could the persecution of Jews and other minorities from 1933 onwards be included?  Because of the comma replacing the colon, the Nuremberg judges decided that it could not, and so their judgements refer only to atrocities committed during the war.

Meanwhile, Raphael Lemkin in the US, again originally from the same city as Lauterpacht and Buchholz, and who also had got out of Germany in time, had invented the term ‘genocide’.  As a student he had become interested in the case of an Armenian called Tehlirian who’d assassinated an Ottoman Minister.  When Tehlirian was tried his defence argued that he was an ‘avenger’ and the judge directed the jury to find that he’d acted without free will because of ‘inner turmoil’.  While the assassin wasn’t convicted, Lemkin was troubled by laws of sovereignty that meant Turkey could murder innocent Armenians without punishment.  Another case that influenced Lemkin’s thinking was that of a Jew called Schwartzbard who, to avenge his family killed in pogroms, had assassinated the Ukrainian General Symon Petliura.  Again there was an acquittal, this time on the grounds that the assassination wasn’t premeditated and Schwartzbard was insane.  Lemkin began to formulate a theory for protecting groups because the existing law had tried two avengers yet nothing had been done to punish the murder of hundreds of thousands of victims.

Lemkin, had previously (in Sweden after fleeing Warsaw), begun collecting a paper trial which was invaluable in the Nuremberg Trials.

As a lawyer, he understood that official documents often reflected underlying objectives without stating them explicitly, that a single document might be less revealing than a collection. (p.165)

From decrees and ordinances, he detected a pattern that was irrefutable evidence of crime:

  • denationalisation, i.e. rendering persons stateless which limits legal protections; followed by
  • dehumanisation, i.e. removing legal rights; followed by
  • ‘kill the nation’… in a ‘spiritual and cultural sense’.

Gradual steps led to the killing of Jews:

  • individual Jews were forced to register;
  • easy public identification was effected by forcing them to wear the yellow star;
  • they were shipped to designated areas (ghettos)
  • the seizure of property left them destitute and reliant on inadequate rations;
  • the intelligentsia was killed off (unless they had escaped, e.g. as Freud did) and the rest used as slave labour; and
  • forced labour under inhumane conditions.

In 1941 Lemkin reached the US and began writing his book, Axis Rule in Occupied Europe.  It set out what was happening in 19 countries to show that the existing laws weren’t good enough.  It was published in 1944, but Lemkin was sidelined from the planning for Nuremberg partly because his personality annoyed people, and partly because his proposals for the crime of genocide were thought to be impractical.   (Even today, it’s very difficult to prove because perpetrators so rarely leave a paper trail).  But Lemkin persisted, and Philippe Sands has written a gripping account of how the Nuremberg Trials proceeded despite this fundamental disagreement about whether genocide should be included or not.

This is a quotation from the prosecution’s opening address that I think is highly significant, especially since today there is criticism of the Nuremberg Trials.  Some aspects of the trials were problematic, not least the problem of retrospectivity, i.e. charging people with crimes that didn’t exist at the time they were committed.  This is an issue that is (surprisingly) not adequately addressed in this book.  Nonetheless, these opening remarks from Robert Jackson who was the US-appointed prosecutor are worth considering in the context of that most wicked of wars and the evidence that the victors had so recently discovered in the death camps:

“That four great nations, flushed with victory and stung by injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of the law is one of the most significant tributes that Power has ever paid to reason.” (p.288)

Whatever their flaws, the Nuremberg Trials were better than what Stalin and Churchill apparently wanted, which was to line the German leadership up against a wall and shoot them. And IMO more importantly than the conviction and sentences passed on the individual men concerned, was that they initiated a great body of international law that has led to:

  • 1945 the founding of the International Court of Justice (ICJ);
  • 1948: the Convention on the Prevention and Punishment of the Crime of Genocide (though it was 1959 before France and the USSR signed up, 1970 before the UK joined them, and 1988 before the US finally acceded to it.
  • 1995: the founding of the International Criminal Court (ICC);
  • (after amendments in 1998) the conviction of Jean-Paul Akayesu (Rwanda);
  • 1998: the British House of Lords ruling that Pinochet could not claim immunity from punishment in UK courts because torture was a crime against humanity;
  • 1999: Serbian President Slobodan Milosevic being the first head of state indicted for acts in Kosovo and in 2001 charges of genocide were added because of Bosnian atrocities;
  • 2007: John Kalymon stripped of his US nationality because he served in the Ukrainian Military Police, rounding up Jews in die Grosse Aktion, i.e. persecuting civilians in a crime against humanity;
  • 2007: the ICJ ruling that Serbia violated its obligation to Bosnia and Herzegovina by failing to prevent genocide in Srebrenica (the first time a State had been indicted);
  •  2010: President Omar Al-Bashir of Sudan, first serving head of state to be indicted for genocide
  • 2012: Charles Taylor of Liberia, first head of state to be convicted of Crimes against Humanity, as a result of his involvement in the Sierra Leone Civil War (1991–2002), currently serving 50 years in prison.

There is more to do, and it would be #Understatement a lot better if the UN were more effective in preventing these crimes, but still, we should acknowledge the contribution that Lauterpacht and Lemkin have made to the UN Conventions and the Universal Declaration of Human Rights that we have today.

(As an interesting aside that shows the importance of protections under international law, The Court of Human Rights recently ruled that Turkey could not criminalise references to the Armenian genocide, a word not invented when it happened in 1915.  This ruling protects like Turkish authors Orhan Pamuk who was indicted in Turkey for referring to it, until an international outcry forced the charges to be dropped.)

PS: BTW Please note that I have avoided naming the city of birth of Leon Buchholz, Hersch Lauterpacht and Raphael Lemkin because the city changed hands eight times between 1914 and 1945, and its name changed multiple times too.

  • In the 19th century it was Lemberg, under the Austro-Hungarian Empire’
  • Post WW1 it was Lwów, in independent Poland;
  • In WW2 it was Lvov under the Soviets; until
  • in 1941 it was Lemberg under the Nazi occupation; and
  • in 1944 it was Lviv after the Red Army liberated it and it became part of Ukraine.

PPS I would like to have included photos of Lauterpacht and Lemkin but I couldn’t find any that were copyright free.

Update 17/3/18 According to the Guardian, Australian lawyers have filed a private prosecution application against Aung San Suu Kyi for failing to protect the Rohinga in Burma:

Aung San Suu Kyi, who is state counsellor and de facto leader of the Myanmar government, is accused in the application of crimes against humanity for the deportation or forcible transfer of a population in relation to widespread and ongoing human rights abuses inside Myanmar. (Ben Doherty, Aung San Suu Kyi : Lawyers seek prosecution for crimes against humanity, The Guardian 17/3/18).

It may not go ahead because in Australia a prosecution has to be approved by the Attorney-General, but it’s a powerful demonstration of a universal demand for accountability all the same.

Author: Philippe Sands
Title: East West Street, On the Origins of Genocide and Crimes Against Humanity
Publisher: Weidenfeld & Nicolson, 2016
ISBN: 9781474603553
Source: Kingston Library

Available from Fishpond: East West Street: Non-fiction Book of the Year 2017


Responses

  1. Reblogged this on The Logical Place.

  2. An excellent account of an important work. I suppose it would be pointless to wish that the victors and the powerful could be prosecuted.

    • Now, yes, I suppose so, especially given American exceptionalism. I believe they still won’t sign up for the ICC. (And most interestingly, Sands says they were hostile to the whole idea of an international crime called genocide that they would be answerable to, because they were worried about their history with American Indians and African American slaves.)
      The UN, and all its bodies and all its instruments, can never be a perfect institution, not given its membership and the oddbods in leadership positions around the world, from democracies to dictatorships. I used to think that Idi Amin was the archetypal bad guy, but now we have Trump.
      History gets in the way too. The Soviets did some terrible things. But Russia is not the USSR and all the people who could be held accountable in WW2 are all dead. And just as we are not doing a very good job of being accountable for the treatment of our First Nation, Russia is not finding it easy to come to terms with their history. Some countries (Britain) struggle with the legacy of colonialism and others (France) seem not to be troubled by it. (Germany is so much the pariah nation because of the Holocaust that their colonial history pales into insignificance. It was interesting to read that one of the Nuremberg defendants said that Germany would wear the guilt for a thousand years.)
      It’s extraordinary when you think about it that the UN has lasted so long and done as much good work as it has. It’s a real pity that K, Rudd Ex PM was bumped by Turnbull for that UN position he was after because I can’t think of anyone better to grasp the complexity of its vast bureaucracy and identify strategies for improvement – and *chuckle* not worry too much about ruffling feathers while he was at it!

      • I know you’re a Rudd fan, I’m afraid I would have preferred Helen Clarke. Re France, Emma had an interesting post recently on France and Algeria. And yesterday I read an excellent article by Helen Razer on nations (rather than individuals) being made psychotic by their refusal to admit guilt – and I think Germany’s admissions have made them a healthy, even model, citizen of the world.

        • Uh, I wouldn’t say ‘fan’ but I never had any respect for the trashing of Rudd’s reputation after the putsch. That was disgraceful, kicking a man when he was down and I have no respect for anyone that took part in it. And Helen Clarke, for all her obvious qualities, isn’t Rudd’s intellectual equal. Few people are, which was part of his problem, as Barry Jones found too when he got involved in politics. I’ve taught enough gifted children to know just how frustrating it is for them to have to deal with lesser mortals, and they don’t all learn to suffer fools gladly.

  3. I am keen to read this one after reading Sands’ essay on Lviv in the Pushkin book “City of Lions”. Painful but necessary reading.

    • I have that book too. I meant to read it after reading a strange book from Glagoslav called Seven Signs of the Lion and I could not really make sense of it because the symbolism of lions in a city of northern Europe escaped me. Do you know how it comes about?

      • Not really…. I think the lion has been the symbol of Lvov for centuries but I couldn’t tell you where that originated from! Perhaps there used to be more lions in northern Europe…. =:o

        • I couldn’t find anything when I hunted around online.
          I can understand why the Brits have lions all over London. Their Empire included countries where lions were native to the landscape, so they had bragging rights, so to say. But Lviv? It makes no sense to me…

  4. […] read this heartbreaking memoir just after Philippe Sands’  East West Street about the development of the international laws of crimes against humanity and genocide, I turned to […]


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