EAST WEST STREET: <\/strong>On the Origins of <\/em><\/strong>GENOCIDE and<\/em> CRIMES AGAINST HUMANITY. <\/strong>By Philippe Sands. 437 pages. Weidenfeld & Nicolson, 2016. \u00a313.99.<\/p>\n Frank: Tell me Rosenberg, was all this destruction and misery necessary? What was the sense in all that racial politics?<\/p> Rosenberg: I was only looking for a practical solution.((Alfred Rosenberg (Hitler\u2019s 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 \u2013 Belzec, Treblinka, Majdanek, and Sobibor \u2013 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). ))<\/p><\/blockquote><\/p>\n 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.\u00a0 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.<\/p>\n But why Lviv?\u00a0<\/p>\n It just so happened that both Lauterpacht and Lemkin lived and went to the same university in Lviv.\u00a0 Both were taught by the same criminal law professor, Juliusz Makarewicz.\u00a0 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 \u2013 international law \u2013 should deal with mass atrocities.\u00a0 Both were pragmatic, but not without idealism.<\/p>\n Lauterpacht focused on the individual as the target of a plan of systematic killings. Lemkin focused on the group as the target \u2013 the killings of individuals because they were part of a group \u2013 the intent being the destruction of the group. \u00a0How 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.\u00a0 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 \u201ccrime of crimes\u201d as it has come to be characterized by some.<\/p>\n I understand your interest in Lauterpacht and Lemkin, but isn\u2019t your grandfather the one you should be chasing? Isn\u2019t he the one closest to your heart?<\/p><\/blockquote><\/div>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: \u201cI understand your interest in Lauterpacht and Lemkin, but isn\u2019t your grandfather the one you should be chasing? Isn\u2019t he the one closest to your heart?\u201d(( Philippe Sands, East West Street: On the Origins of <\/em>GENOCIDE and<\/em> CRIMES AGAINST HUMANITY xxx Weidenfeld & Nicolson 2016 (hereinafter \u201cEast West Street\u201d). ))<\/p>\n For those of us who practice before the international criminal tribunals and courts, Philippe Sands needs no introduction.\u00a0 He is a practicing barrister (Queen\u2019s 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<\/em><\/a>) and perform A Song of Good and Evil<\/em><\/a>.<\/p>\n East West Street <\/em>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.\u00a0 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.<\/p>\n 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.\u00a0 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 \u2013 other than in some superficial fashion.<\/p>\n 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.<\/p>\n It would be a mistake to think of East West Street <\/em>as just another (if there is such a thing) Holocaust human-interest story. Far from it. In delivering a tour d\u2019horizon <\/em>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 <\/em>GENOCIDE and<\/em> CRIMES AGAINST HUMANITY.<\/p>\n Using his grandfather\u2019s 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.<\/p>\n 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: \u201cDoes 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?\u201d(( East West Street, p. xxix.)) As we will see, this question is not without merit.\u00a0 The short answer is: yes.<\/p>\n 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.\u00a0 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.\u00a0 According to Sands, Lauterpacht\u2019s thinking was influenced by the Viennese legal philosopher Hans Kelsen, who helped draft the new Austrian Constitution, which (much like the United States\u2019 Constitution), conferred inalienable rights upon individuals that could be enforced by the courts:<\/p>\n This was a different model from that which protected minority rights, as in Poland.\u00a0 The two key distinctions \u2013 between groups and individual, between national and international enforcement \u2013 influenced Lauterpacht\u2019s thinking. In Austria, the individual was placed at the heart of the legal order.<\/p>\n By contrast, in the rarefied, conservative world of international law \u2013 dominated by the idea that the law served the sovereign \u2013 the notion that an individual had rights enforceable against the state was inconceivable.\u00a0 The state must be free to act as it wished, unless it voluntary accepted rules of constraint\u2026. In short, the state could do whatever it wanted to its nationals. It could discriminate, torture, or kill.(( Id<\/em>., p. 76.))<\/p>\n But how to rein in the power of the state?\u00a0 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 \u201ccatalyst\u201d for wedding national and international law: \u201cAmong the sources of international law [the Permanent Court of International Justice] applied \u2013 the main ones were treaties and customary law \u2013 were \u2018general principles of law recognized by civilized nations.\u2019 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.\u201d(( Id<\/em>., p. 82.))<\/p>\n Pragmatic, as opposed to conservative, Lauterpacht\u2019s focus was on the protection of the individual, not of groups.\u00a0 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<\/em>, 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.<\/p>\n Thus, it should come as no surprise that Lauterpacht was disinclined to give serious thought to Lemkin\u2019s ideas of creating a crime that went to the protection of the group.\u00a0 In reviewing Lemkin\u2019s magnum opus, Axis Rule in Occupied Europe<\/em>, Lauterpacht was condescending and dismissive of Lemkin and \u2018\u201cwhat [Lemkin] calls \u2018genocide\u2019 \u2013 a new term for the physical destruction of nations and ethnic groups.\u2019 It may be \u2018a scholarly historical record\u2019\u2026but it \u2018cannot be accurately said that the volume is a contribution to the law.\u2019\u201d(( Id<\/em>., p. 107.))<\/p>\n In discussing this review and Lauterpacht\u2019s general thoughts of Lemkin and his work with Sir Elihu Lauterpacht (Lauterpacht\u2019s son and legal scholar), Sands sheds some light on Lauterpacht\u2019s dismissiveness of Lemkin. Viewing Lemkin as a \u201ccompiler, not a thinker,\u201d Lauterpacht \u201cmay have resented the intrusion into the field of international law of a personal notion like genocide, not supported by practice.\u201d(( Id<\/em>.))<\/p>\n 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 <\/em>the systematic, methodical, and calculated pattern (\u201cdecisive steps\u201d)(( Id<\/em>., p. 166.)) of the Nazi regime: denationalization followed by dehumanization, followed by spiritual and cultural eradication, and eventual impoverishment. \u00a0With the \u201cdehumanization and disintegration\u201d of the group, its members were readied for the \u201chour of execution.\u201d(( Id<\/em>; 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<\/em>, 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.(( East West Street, p. 157.))<\/p>\n In Sands\u2019 words:<\/p>\n 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 \u2018the life of peoples\u2019: to prevent \u2018barbarity\u2019, the destruction of groups, and to prevent \u2018vandalism\u2019, attacks on culture and heritage.(( Id<\/em>.))<\/p>\n Lauterpacht\u2019s concept of crime against humanity made it into the Nuremberg Charter (though not without controversy),(( 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.” \u00a0The 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<\/em> Egon Schwelb, Crimes against Humanity<\/em>, 23 Brit. Y.B. Int\u2019l L. 178, 190, 194-95 (1946). \u00a0)) while Lemkin\u2019s audacious theory of genocide only featured in count 3 of the Nuremberg Indictment, defined as:<\/p>\n 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.(( East West Street, p. 188, citing<\/em> Indictment, adopted 8 October 1945, Trial of the Major War Criminals Before the International Military Tribunal<\/em> (Nuremberg, 1947), I: 43.\u00a0 ))<\/p>\n 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. \u00a0We were at a conference to deliver papers on genocide. King\u2019s description of Lemkin((See also <\/em>Henry T. King Jr., Genocide and Nurember<\/em>g in<\/em> 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 \u201ca disheveled and disoriented figure, constantly trying to catch the attention of prosecutors.\u201d(( East West Street, p. 334-5.))<\/p>\n On crimes against humanity and genocide, Sands makes two important observations.\u00a0 First, since Nuremberg \u201c[a]n informal hierarchy has emerged.\u2026 [T]he word genocide gained traction in political circles and in public discussions as the \u2018crime of crimes\u2019, elevating the protection of groups above that of the individual.\u201d(( Id<\/em>., 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. \u00a0I agree.<\/p>\n 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\u2019 statutes).(( Both the ICTY and ICTR Statutes draw their provisions on genocide verbatim <\/em>from the Genocide Convention, stating in Article 4 (ICTY) and Article 2 (ICTR) of the Statute: \u201cThe 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.\u201d 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<\/em>,((See <\/em>UN Secretary-General Press Release, SG\/SM\/6687, Secretary-General Welcomes Rwanda Tribunal’s Genocide Judgement As Landmark In International Criminal Law<\/em><\/a>, 2 September 1998: \u201cThe [ICTR] has today announced the first-ever judgement on the crime of genocide by an international court\u2026. This judgement is a testament to our collective determination to confront the heinous crime of genocide in a way we never have before.\u201d See <\/em>also ICTR\u2019s News Archive, Historic Judgement Finds Akayesu Guilty of Genocide<\/em><\/a>, 2 September 1998.)) which may give rise to false notions that without a genocide conviction the raison d\u2019\u00eatre<\/em> 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.<\/p>\n [R]ather than genocide being a stand-alone crime, why not consider placing it within the crimes against humanity rubric?<\/p><\/blockquote><\/div>It may be time to re-think the crime of genocide.\u00a0 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.\u00a0 A thought I have been ruminating on for some time.<\/p>\n East West Street<\/em> 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.\u00a0 I unreservedly recommend East West Street.<\/em><\/p>\n
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<\/a><\/a>In East West Street<\/em>, Sands takes his talents to another level.\u00a0 Part autobiographical, part biographical, part historical, and part law, East West Street<\/em> has the plot and pace of a good detective novel with prose bordering on literature.\u00a0 The question posed by the student in Lviv leads Sands on a personal odyssey that will reveal (and explain) his grandparents\u2019 past as Holocaust survivors, and much, much more. Using his grandfather\u2019s 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\u2019 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.<\/p>\n<\/a>