Book Review – EAST WEST STREET: On the Origins of GENOCIDE and CRIMES AGAINST HUMANITY, by Philippe Sands

EAST WEST STREET: On the Origins of GENOCIDE and CRIMES AGAINST HUMANITY. By Philippe Sands. 437 pages. Weidenfeld & Nicolson, 2016. £13.99.

Frank: Tell me Rosenberg, was all this destruction and misery necessary? What was the sense in all that racial politics?


Rosenberg: I was only looking for a practical solution.1Alfred Rosenberg (Hitler’s foremost theorist on racial politics) claiming that mass murder and war was an unintended consequence of his racial politics, to Hans Frank (Governor-General of the occupied Polish territories, where four extermination camps – Belzec, Treblinka, Majdanek, and Sobibor – were located and under his overarching authority), as told by Baldur von Schirach, Gauleiter and Reichsstatthalter (Reich Governor) of Vienna, responsible for sending Jews from Vienna to German death camps. Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity 283 Weidenfeld & Nicolson 2016, citing Gustav Gilbert, Nuremberg Diary 42 (New York: Ferrar, Straus, 1947).

Philippe Sands, QC

In the autumn of 2010, Philippe Sands was invited to deliver a lecture in Lviv, Ukraine, a city that in the past has also been called Lemberg, Lvov, and Lwow, depending on who controlled the territory.  The lecture centered on Hersch Lauterpacht and Rafael Lemkin, two legal giants whose theories on crimes of (state) sponsored mass atrocities and individual criminal responsibility featured prominently during the Nuremberg trial, irrevocably changing the legal landscape in international criminal law. Lauterpacht is credited with conceptualizing and introducing crimes against humanity into the Nuremberg trial. Lemkin is the conceptualizer and author of the crime of genocide; a crime that also featured at Nuremberg, albeit less prominently, but that would go on to be codified as an international legal instrument by the United Nations General Assembly when it adopted the Convention on the Prevention and Punishment of the Crime of Genocide on 9 December 1948.

But why Lviv? 

It just so happened that both Lauterpacht and Lemkin lived and went to the same university in Lviv.  Both were taught by the same criminal law professor, Juliusz Makarewicz.  Both shared a passion for criminal law. Both were Jews from a place, and during a time, which shaped their thinking and their approach in how the law – international law – should deal with mass atrocities.  Both were pragmatic, but not without idealism.

Lauterpacht focused on the individual as the target of a plan of systematic killings. Lemkin focused on the group as the target – the killings of individuals because they were part of a group – the intent being the destruction of the group.  How serendipitous that both Lauterpacht and Lemkin would be contemporaries from the same university (they studied only a few years apart) and, of all places, Lviv.  Of the two, Lemkin was, for a lack of a better term, fanatical; he obsessively pursued his goal of having genocide recognized as an international crime, or the “crime of crimes” as it has come to be characterized by some.

I understand your interest in Lauterpacht and Lemkin, but isn’t your grandfather the one you should be chasing? Isn’t he the one closest to your heart?

The story would have ended there, and we would have been no less the wiser, though certainly very much deprived of this fascinating book, had it not been for a student who after the lecture went up to Sands, and asked: “I understand your interest in Lauterpacht and Lemkin, but isn’t your grandfather the one you should be chasing? Isn’t he the one closest to your heart?”2 Philippe Sands, East West Street: On the Origins of GENOCIDE and CRIMES AGAINST HUMANITY xxx Weidenfeld & Nicolson 2016 (hereinafter “East West Street”).

For those of us who practice before the international criminal tribunals and courts, Philippe Sands needs no introduction.  He is a practicing barrister (Queen’s Counsel) from the United Kingdom and an academic. Though highly sought-after in representing clients in complex and high profile cases, he manages to also teach and write (books, articles, editorial pieces, reviews, etc.), as well as create a documentary (A Nazi Legacy: What Our Fathers Did) and perform A Song of Good and Evil.

In East West Street, Sands takes his talents to another level.  Part autobiographical, part biographical, part historical, and part law, East West Street has the plot and pace of a good detective novel with prose bordering on literature.  The question posed by the student in Lviv leads Sands on a personal odyssey that will reveal (and explain) his grandparents’ past as Holocaust survivors, and much, much more. Using his grandfather’s life experiences in Lviv to Vienna and then to Paris, from child, to a young man, to an endangered Jew on the run, to a resistance fighter, to husband, father, and then grandfather, Sands weaves a narrative that vicariously takes us to these places and times, and through the eyes of his chosen protagonists, the main ones being: Leon Buchholz (Sands’ grandfather), Lauterpacht, Lemkin, and Hans Frank (one of the defendants in the Nuremberg trial, Governor-General of the occupied Polish territories, overseeing four extermination camps). There are other minor characters, but it is through these four main protagonists that we see Germany, Austria, Poland, and Ukraine, from pre-World War II to the Nuremberg trial and beyond.

East West Street is crafted much like a Picasso cubist painting. We think we are interpreting the painting correctly, but when we look at the title of the painting we wonder whether we are missing something.  It is not so much the narrative of this period that may impede our ability to grasp the full understanding of the origin and evolution of crimes against humanity and genocide, as it may be our own preconceptions or lack of knowledge and historical context.

We (I am referring to many of us who practice international criminal law) tend to be well versed on the law because we deal with it all the time, but few of us have diligently studied it from a multi-dimensional, multi-disciplinary approach.  We can cite the elements of the crimes, the chapeau requirements for crimes against humanity, or the special genocidal intent required for genocide, but when it comes to the context in which these crimes were conceptualized and the journey they (and their originators) took from concept to codification or recognition as customary international law, many of us are at a loss to articulate how these laws have evolved and why – other than in some superficial fashion.

Sands not only presents an exquisite cubist painting, he then unfolds the images one by one, thus helping us understand, appreciate, and feel the subject of his painting. The narrative is a composite of stories told individually and simultaneously, enabling the reader to see the trees and the forest, the overlapping of events where the protagonists find themselves, and the ways in which all are interconnected in small or large measure.

It would be a mistake to think of East West Street as just another (if there is such a thing) Holocaust human-interest story. Far from it. In delivering a tour d’horizon of Nazi-era crimes that lands members of the German high command and others (such as Frank) in the Nuremberg dock, Sands artfully weaves in and helps us understand the purpose of his book as seen from the subtitle: On the Origins of GENOCIDE and CRIMES AGAINST HUMANITY.

Leon Buchholz 1939

Using his grandfather’s personal saga as the vehicle for launching and stringing the narrative along, Sands weaves in the Lauterpacht-Lemkin intellectual divide. We see how Lauterpacht and Lemkin came to their different conceptualizations of how mass atrocities should be classified, and their own quests in advancing their respective legal concepts to be recognized as crimes at Nuremberg. Fascinating.

During his lecture in Lviv, Sands is asked to explain the difference between crimes against humanity and genocide. After obliging, someone else asked him if having two separate crimes really makes a difference? The thrust of the question, as Sands elegantly puts it, was: “Does it matter whether the law seeks to protect you because you are an individual or because of the group of which you happened to be a member?”3 East West Street, p. xxix. As we will see, this question is not without merit.  The short answer is: yes.

After taking us through the events leading up to the Nuremberg trial, Sands walks us through the efforts made and roles played by Lauterpacht and Lemkin.  Well before the Nuremberg trial both men had been involved in the visionary thinking of what has come to be recognized as universal jurisdiction for crimes committed by a state against its own people or others.  According to Sands, Lauterpacht’s thinking was influenced by the Viennese legal philosopher Hans Kelsen, who helped draft the new Austrian Constitution, which (much like the United States’ Constitution), conferred inalienable rights upon individuals that could be enforced by the courts:

This was a different model from that which protected minority rights, as in Poland.  The two key distinctions – between groups and individual, between national and international enforcement – influenced Lauterpacht’s thinking. In Austria, the individual was placed at the heart of the legal order.

By contrast, in the rarefied, conservative world of international law – dominated by the idea that the law served the sovereign – the notion that an individual had rights enforceable against the state was inconceivable.  The state must be free to act as it wished, unless it voluntary accepted rules of constraint…. In short, the state could do whatever it wanted to its nationals. It could discriminate, torture, or kill.4 Id., p. 76.

But how to rein in the power of the state?  Most states did not offer the protection of the Austrian Constitution. The Treaty of Versailles and the establishment of the Permanent Court of International Justice seemed to have influenced Lauterpacht, serving as “catalyst” for wedding national and international law: “Among the sources of international law [the Permanent Court of International Justice] applied – the main ones were treaties and customary law – were ‘general principles of law recognized by civilized nations.’ These were to be found in national legal systems, so that the content of international law could draw on the better-established rules of national law.”5 Id., p. 82.

Pragmatic, as opposed to conservative, Lauterpacht’s focus was on the protection of the individual, not of groups.  His belief that crimes against humanity are inherently existing or resultant from national crimes and thus are applicable in an international court was revolutionary at that time. But criminalizing acts against a group as the crime per se, such as genocide, seemed a bit of a stretch or impractical to him; it was neither pragmatic nor capable of passing the test of the principle of legality.

Thus, it should come as no surprise that Lauterpacht was disinclined to give serious thought to Lemkin’s ideas of creating a crime that went to the protection of the group.  In reviewing Lemkin’s magnum opus, Axis Rule in Occupied Europe, Lauterpacht was condescending and dismissive of Lemkin and ‘“what [Lemkin] calls ‘genocide’ – a new term for the physical destruction of nations and ethnic groups.’ It may be ‘a scholarly historical record’…but it ‘cannot be accurately said that the volume is a contribution to the law.’”6 Id., p. 107.

In discussing this review and Lauterpacht’s general thoughts of Lemkin and his work with Sir Elihu Lauterpacht (Lauterpacht’s son and legal scholar), Sands sheds some light on Lauterpacht’s dismissiveness of Lemkin. Viewing Lemkin as a “compiler, not a thinker,” Lauterpacht “may have resented the intrusion into the field of international law of a personal notion like genocide, not supported by practice.”7 Id.

Lemkin may have been a compiler and synthesizer, but through documentary evidence (as a prosecutor would go about gathering) he showed in Axis Rule in Occupied Europe the systematic, methodical, and calculated pattern (“decisive steps”)8 Id., p. 166. of the Nazi regime: denationalization followed by dehumanization, followed by spiritual and cultural eradication, and eventual impoverishment.  With the “dehumanization and disintegration” of the group, its members were readied for the “hour of execution.”9 Id; Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress 524 Washington, D.C: Carnegie Endowment for International Peace (1944). In Chapter 9 of Axis Rule in Occupied Europe, Lemkin delivers the innovative legal theory he had been obsessing over and refining through the years: genocide. Lemkin grounded genocide on universal jurisdiction, a legal concept that Romanian legal scholar Vespasian V. Pella had been advancing.10 East West Street, p. 157.

In Sands’ words:

Lemkin, a practical idealist, believed that proper criminal laws could actually prevent atrocity. In his view, the minorities treaties [such as Article 93 of the Treaty of Versailles and the Polish Minorities Treaty] were inadequate, so he imagined new rules to protect ‘the life of peoples’: to prevent ‘barbarity’, the destruction of groups, and to prevent ‘vandalism’, attacks on culture and heritage.11 Id.

Lauterpacht’s concept of crime against humanity made it into the Nuremberg Charter (though not without controversy),12 Article 6 (c) of the Nuremberg Charter defined crimes against humanity as: “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.”  The semi-colon would ultimately be replaced with a comma, thus altering the definition and reducing the jurisdiction of the Nuremberg Tribunal. For an interesting discussion on the interpretation and impact resulting from of the replacement of the semi-colon with a comma, see Egon Schwelb, Crimes against Humanity, 23 Brit. Y.B. Int’l L. 178, 190, 194-95 (1946).   while Lemkin’s audacious theory of genocide only featured in count 3 of the Nuremberg Indictment, defined as:

Extermination of racial and religious groups, against the civilian population of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, Gypsies and others.13 East West Street, p. 188, citing Indictment, adopted 8 October 1945, Trial of the Major War Criminals Before the International Military Tribunal (Nuremberg, 1947), I: 43. 

The term genocide was also invoked on several occasions by various Nuremberg prosecutors during closing arguments. Lemkin may have been viewed as an obsessive inconvenience prior to and during the Nuremberg trial, but his persistence paid off. And by all accounts, he could persist. I recall in 2005 meeting Henry King, the youngest American prosecutor at Nuremberg.  We were at a conference to deliver papers on genocide. King’s description of Lemkin14See also Henry T. King Jr., Genocide and Nuremberg in The Criminal Law of Genocide: International, Comparative and Contextual Aspects 29-35 (Ralph Henham and Paul Behrens eds., Ashgate 2007). matches the description given to Sands by another American prosecutor at Nuremberg, Benjamin Ferencz, describing Lemkin as “a disheveled and disoriented figure, constantly trying to catch the attention of prosecutors.”15 East West Street, p. 334-5.

On crimes against humanity and genocide, Sands makes two important observations.  First, since Nuremberg “[a]n informal hierarchy has emerged.… [T]he word genocide gained traction in political circles and in public discussions as the ‘crime of crimes’, elevating the protection of groups above that of the individual.”16 Id., p. 180. Second, proving the elements of genocide, notably the special genocidal intent to destroy the group as such, has proved exceptionally difficult in international trials.  I agree.

To these two observations I would add a third. International prosecutors and judges go out of their way to concoct new, creative ways to interpret and apply the Genocide Convention (as adopted into international tribunals’ statutes).17 Both the ICTY and ICTR Statutes draw their provisions on genocide verbatim from the Genocide Convention, stating in Article 4 (ICTY) and Article 2 (ICTR) of the Statute: “The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.” Paragraphs 2 and 3 correspond to Articles II and II of the Genocide Convention respectively. Somehow, achieving a genocide conviction gives a court a certain cachet,18See UN Secretary-General Press Release, SG/SM/6687, Secretary-General Welcomes Rwanda Tribunal’s Genocide Judgement As Landmark In International Criminal Law, 2 September 1998: “The [ICTR] has today announced the first-ever judgement on the crime of genocide by an international court…. This judgement is a testament to our collective determination to confront the heinous crime of genocide in a way we never have before.” See also ICTR’s News Archive, Historic Judgement Finds Akayesu Guilty of Genocide, 2 September 1998. which may give rise to false notions that without a genocide conviction the raison d’être of international criminal tribunals and courts may be called into question. Making a genocide conviction a desired result, sought even when the law and facts do not support it without straining the law and facts in a procrustean bed, dilutes the essence of the crime of genocide.

[R]ather than genocide being a stand-alone crime, why not consider placing it within the crimes against humanity rubric?

It may be time to re-think the crime of genocide.  Lemkin was right to articulate genocide as a crime. But rather than genocide being a stand-alone crime, why not consider placing it within the crimes against humanity rubric? This would not diminish the gravity of the crime of genocide. It could, however, help to diminish the perceived subordination and gravity of other crimes that are recognized as crimes against humanity, such as extermination.  A thought I have been ruminating on for some time.

East West Street may not provide the answer to these observations, but the historical and legal ground covered by Sands educates, provokes, and inspires. Suffice it to say, this is another one of those must-read books for anyone interested in or practicing international criminal law.  I unreservedly recommend East West Street.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

One thought on “Book Review – EAST WEST STREET: On the Origins of GENOCIDE and CRIMES AGAINST HUMANITY, by Philippe Sands”

  1. The two men that one such as myself will never meet nor would have heard due to different specialization in the field. Crime against humanity or genocide, two terms that are loaded with triggered hair raising experience for one that has been through the ordeal, both terms do seem to be synonymous. In total agreement with the assertion and the ponder of does it matter that the law protects you or a group of people. —Thanks for pointing it out.

    West,

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