Judge Dennis Davis
Lemkin and Lauterpacht and the Origins of International Human Rights Law
Judge Dennis Davis | Lemkin and Lauterpacht and the Origins of International Human Rights Law | 06.13.22
Visuals and video displayed throughout the presentation.
- What we’re going to be talking about tonight are two remarkable individuals who came from the same place. Well, certainly can be sourced in the same place. Lemberg will evolve as it is now. Strangely, of course, now central to the whole Ukraine-Russia conflict. But let me make some preliminary remarks before we get into the details about the two international lawyers that I want to talk to you about this evening, which is Raphael Lemkin and Hersch Lauterpacht. My first preliminary remark is, in many ways, many of the talks which have been given on Lockdown University, not just by me, but I suspect almost all, which have some or other political connotation, really are taking place, now, within a particularly important context. I say that for the following reason. Tonight we’re going to be talking about Lemkin and Lauterpacht who were absolutely central to the construction of international human rights law, which emerged after World War II, and which, as as it were, provided real hope that that which occurred in the Holocaust, and indeed in the broader context of World War II, would not reoccur in the lifetime, not just of the people who wrote it, but in our lifetimes as well.
And coupled to that, I suppose, we could say, there was also a construction, maybe not of a social democratic state, national state, but certainly a state, in many parts of the world, which regarded questions of inequality and poverty as so important that the state was to play a significant role in the reconstruction of society. That did not just mean, obviously, the reconstruction of German society, but if you look at British society with National Health, the emergence of the Labour Party after 1945, a whole series of instruments which, essentially, brought about a significant role for the state in the construction of society and the addressing of profound levels of poverty. And as Piketty has noted in his book “Capital”, of course, a time when inequality was not quite what it is today. It is also true of the United States, where the Rooseveltian New Deal did continue after World War II, albeit that after one election, well, certainly by the 1950s, Eisenhower came to power and the Republican party was in control of the White House, albeit an entirely different Republican party to the one which bedevils the United States at present. The simple point I’m making is that there were a series of frameworks which gave rise to a very different world, a world which emphasised human rights, emphasised the dignity of the individual, was concerned about the role of the state in redressing inequality and poverty.
Why do I mention this? Because in the year 2022, in which I’m now talking about Lauterpacht and Lemkin, one cannot but effectively ask the question, how secure, or indeed, how much in existence, are those fundamental planks of society, of governance, which were put into place after World War II and were put into place primarily, if you wish, by the disastrous consequences of World War II and events that preceded World War II, which contributed to it in the first place? And one has to ask that question because in so many ways, one is not sure of this any longer. Certainly, the idea of the economics, which essentially created the institutions of the economy of which I’ve made reference, are no longer there, or are under enormous threat. And it does appear that in many countries the idea of a state, which essentially would be characterised by broad social democratic brushes, no longer finds favour. We also seem to accept that human rights, the rule of law, accountability, are under extraordinary pressure. The idea of the social practise of rights, as Richard Flathman spoke about them, that is, the idea that we live in a society where we recognise that there are fundamental rights, not just given to us, but to the other, to other people, and that these are central to our civilization, which I want to argue was very much at the forefront of both Lauterpacht and Lemkin’s thinking.
You have to ask yourself today, to what extent is that social practise of rights still resiliently in existence? There is no question that if you look at the United States of America, one has to really raise the question as to whether the social practise of rights, predicated as it is on the constitutional instruments of the United States of America, and, therefore, based on the rule of law, accountability and principal government, still exists in the same way as it might have done, probably pre the younger George Bush. And one can ask, rhetorically, what would four more years of Donald Trump do to that practise? In short, American constitutional democracy is under threat. You don’t have to accept my word for it. There’s now a veritable library of materials which have been written on precisely this topic. In my own country, in South Africa, where, indeed, we haven’t had the benefit of more than 200 years of constitutional democracy, as is the case in the United States, the reality is not entirely dissimilar. And, I for one, am concerned that all forms of populist influences in South Africa, essentially, not just detract from, but may well ensure that any social practise of rights, which is essential to human rights in general, constitutional democracy in particular, no longer have the traction that they might have had when we launched on this experiment in 1994.
And, therefore, when we look at Lauterpacht and Lemkin, context matters. And when we talk about the politics of the 21st century, this particular context matters enormously. And so, it weighs heavily on me that these two, that is Lauterpacht and Lemkin’s work, which we now evaluate, takes place in a context where I might have said many different things, were we to be talking about this 25 years ago. That’s my first preliminary remark. My second, which is of equal importance to me, is how difficult it is to talk about this topic when many of you have read that magnificent book by Philippe Sands, who I had the privilege to interview for Lockdown university and, indeed, also, but on other occasions, “East West Street”, where the figures of Lemkin and Lauterpacht emerge back into the public mind and public discourse. And if you really want to read the way they were important in this regard, if you haven’t read Philippe Sands’s book, or if you have read it and forgotten it, it’s the book to read. So, with those remarks in mind, let me turn to our two heroes of this evening. They were unquestioning… It’s interesting that both of them studied law, and I’m going to mispronounce this, probably, at the Jan Kazimierz University in the Galician capital, which at that time was called Lemberg, and which, of course, is now Lviv, in what was at that stage interwar Poland. They were both former Jewish activists, and in their professional careers, they focused on crimes against humanity, and, in particular, the Holocaust, and both had significant roles to play in the Nuremberg Trials in 1945 and 1946, which we’ve examined. And they certainly didn’t get along, but in many ways they could have almost coupled it as tote, as it were.
So fast forward a couple of years, and on the 9th of December, 1948, the United Nations General Assembly adopted at its meeting in Paris, the Convention on the Prevention and Punishment of the Crime of Genocide, followed the next day by the adoption of the Universal Declaration of Human Rights. Now there’s no doubt, as I’ve indicated in my introductory remarks, that both of these documents, vital as they were, were born out of the experience of the Second World War. If you wish, and you look at the work of Hannah Arendt, who spoke about the notion of cosmopolitanism and the idea that if you predicated everything on a link to the nation’s state, you could well lead… it could well lead to the kind of deracination, and, effectively, crimes against humanity or genocide which took place during the Second World War. And these two documents, therefore, emphasised that the sovereign state was no longer the dominant category, that individual human rights were particularly important, that, for Lauterpacht at least, central to the thinking of any international human rights document, indeed, one would want to argue, central to any human rights instrument was the individual, the dignity of the individual.
Lemkin, of course, coined the term genocide, and for him the question, as we will talk about a little later, of crimes against groups and identified groups was particularly paramount, given his experience of the Second World War. Lauterpacht, as a result of his idea of the unit of analysis being the individual, promoted the concept of a crime against humanity. But it was these two men who went to the same university, who emerged out of the same city, now part of Ukraine, under terrible threat from Russia, how relevant, therefore, is all of this today, I can only emphasise. It is they who were the architects of much of this, and whilst they did not necessarily get on, Lauterpacht certainly eschewed the concept of genocide, there are extraordinary similarities between them, and I want to mention 10, and then I want to play you two clips so you can get some feel of what I’m talking about through the clips that I have chosen. The 10 points I want to make. They both came from liberal Jewish families in Polish-speaking surrounds. Lemkin, from the farmstead of Ozerisko, which was in the Russian half of partitioned Poland. Today it’s in western Belarus. Lauterpacht, from a small town of Zolkiew, near Lwow, in the Habsburg part of the Empire. They were both fluent in Hebrew and Yiddish. They were both active in Zionist youth and student organisations.
Secondly, the two belonged to the same generational cohort. Lauterpacht born in 1897, Lemkin in 1900, and they died just a year apart, Lauterpacht in 1960, Lemkin in 1959. They both studied, as I mentioned, at the same university in Lwow, primarily with the same professors, although not at the same time. Lauterpacht from 1915 to 1919, Lemkin from 1920 to 1926. Fourthly, even from their early publications, they were particularly concerned with international law. They were concerned with international law because of that which had been established pursuant to the Paris Peace Conference, by way of the League of Nations, the Permanent Court of International Justice in the Hague, et cetera. Fifthly, during the interwar period, they both established themselves nationally and internationally as influential advocates of international law. Sixthly, they both emigrated from central Europe to Anglophone countries. Lauterpacht moved to the United Kingdom where he obtained a PhD at the LSE and then eventually landed up by being the Professor of International Law at Cambridge.
Lemkin, on the other hand, left, I think, in ‘41 and eventually came to and managed to get, via a circuitous route, to the US. Seventh, both of them were targets of open or hidden anti-Semitic attacks for their entire lives, from their Galician childhood until their old age, whether it be in the UK or the USA. Eighth, they had both lost almost all of their family, including their parents, in the Holocaust. Nine, as I’ve indicated, they played significant roles in the Nuremberg war crimes tribunal of '45 to '46. And their concepts, genocide, crimes against humanity, were clearly central to the discourse at that time. And finally, it is true, as I’ve indicated, that thanks to much of their work in 1948, the two conventions, that is the Genocide Convention and the Human Rights Declaration, emerged into international law proper. Now let us drill down a little bit into the two of them. I’m going to start with Lauterpacht. I couldn’t find a clip of Lauterpacht, per se. I could find many of his son.
So Elihu Lauterpacht became a successor professor at the University of Cambridge, and indeed, some of his lectures I attended when I was studying criminology at Cambridge in the late, in 1979. But I want to talk, if I may, I wanted to show you a very brief clip of Lauterpacht, which was done by Philippe Sands, the magnificent author of that wonderful book, “East West Street”. So just listen to what he has to say. And, as it were, it also points in the direction where I’d like to go, that is, today, as I’ve already emphasised. So Lauren, the first clip, please.
[Video clip plays]
- [Philippe Sands] You have this remarkable situation in which Hersch Lauterpacht is prosecuting the man directly responsible for the deaths of his own family. It could be said that modern human rights is descended, very largely, from the work of Hersch Lauterpacht. Hersch Lauterpacht was born in a small town called Zhovkva in the Austro-Hungarian Empire in 1897. He went to study at what is today Lviv University and then at the University of Vienna. In 1945, he published an International Bill of Rights of Man, which was the first effort by an academic to set out the theory of human rights for all human beings. You can draw a direct connection between Lauterpacht’s book, the Universal Declaration on Human Rights, and the European Convention on Human Rights. That same year, in 1945, he was hired to be a member of the British prosecution team at the famous Nuremberg trial. The man that he prosecuted principally was Hans Frank, who was the Governor General of occupied Poland, including the area in which his family remained behind, and we’re talking about his mother, his father, his brother, his sister.
They were all killed, essentially, on orders adopted by Hans Frank. It was he, also, who came up with the idea of including in the Statute of Nuremberg, the concept of crimes against humanity. And crimes against humanity on his conception was concerned with the international crime of killing large numbers of individuals. So the central focus of Lauterpacht’s work was to seek to ensure, for the first time, that human beings as individuals had minimum rights under international law and that was a revolutionary idea. It had never happened before. In fact, I think the current crop of politicians have tended to forget what it was that happened in that period. People find a connection between Lauterpacht and what we’re beginning to see on our streets now. The rise of nationalism, the re-birth of xenophobia. The reason people have an interest in reading about Lauterpacht is, I suppose, a hope that the experience he went through and the lessons that he drew from that, offer a reminder as to what we should and should not be doing right now.
- And I think that’s the really important question, is what Lauterpacht spoke about. How much do we learn from that today? I think Philippe Sands puts the point absolutely squarely. Now, as I indicated, Lauterpacht was really heralded in international law. As I indicated, he got a job at LSE. Thanks to his doctorate, 1927, 1937, he got the Whewell Chair of International Law at Cambridge and he held that until 1955 on his retirement. In fact, he became, which was particularly important, the British Judge of the International Court of Justice by 1954, which was really a vitally important role, which he held right through until his death. I should tell you, however, that in some ways, even when he got that, he had to suffer opposition from English anti-Semites in government and academic circles. Nonetheless, to their credit, the nomination stuck and he took up his seat. By contrast, Lemkin was a much more tragic character. He had got his PhD in Lwow in '26. He made a career in the judiciary in Warsaw, represented Poland international legal fora while pursuing academic interests. In 1934, due to the anti-Semitic pressures exerted, he left the public sector and he started his own law firm, basically consulting foreign taxpayers in Poland, or being consulted by.
In 1940, he escaped, as I indicated, from Soviet-occupied eastern Poland via Lithuania and Latvia to Sweden, when he finally managed to emigrate in '41 to the United States. But the tragedy for him, was apart from short term university jobs and actually short governmental employment, he never achieved a permanent position. No US publishing house was interested in any of his projects, particularly his three-volume “History of Genocide”. And in 1959 when he died in New York, he was in dire poverty. He died of a heart attack while lobbying for the publication of his autobiography. He was, in short, a tragic character. And yet this tragic character was the one who pursued relentlessly the idea of genocide as a crime, which became central to the convention that I’ve alluded to. I’m going to play for you just a short interview that Lemkin gave. He was with two other people when he gave it. We’ll just watch the first five minutes. It gives you a sense of, perhaps, of his awkwardness, but it also gives you a sense of what he was on about in relation to the crime of genocide and why he was so relentless in pursuing that rather than the more individualistic idea which Lauterpacht had of individual responsibility. And then we’ll talk a little bit why these were so significant.
[Video Narrator] You have this remarkable…
Well, now when we come to our third guest, Dr. Raphael Lemkin, who is a Professor of Law at Yale University and specialising in teaching matters about the United Nations. Dr. Lemkin is the man who created the word genocide and really has fought this thing from long, long ago. Dr. Lemkin, could you give us a little background on how you came to be interested in this genocide fight, originally.
Well, really, Mr Howe, it leads me very far back to my childhood. Everybody has sentimental memories from childhood, and everybody has a book he loved most. One of my inspiration in this field was a book by Sienkiewicz, “Quo Vadis”, which described the terrible suffering of the early Christians. Later on, I became interested in genocide because it happened so many times. It happened to the Armenians, and after the Armenians got a very rough deal at the Versailles Conference, because the criminals who were guilty of genocide were not punished. You know that they were organised, a organisation, a terroristic organisation which took justice in their own hands. The trial of Talaat Pasha in 1921 in Berlin is very instructive, a man whose mother was killed in genocide case killed Talaat Pasha. And he told the court that he did it because his mother came in his sleep and incited him many times. Here the murder of your mother, you do think about it. And so he committed a crime. So you see, as a lawyer, I thought that crime should not be punished by the victims, but should be punished by court, by international law.
And you took it up then again when Hitler came to power in Germany, didn’t you?
Correct, in 1933, and there was another big case of genocide yet which interested me, a big case in Middle East. I won’t like to mention the country. There are two cases in 1933, and then I said to myself, now being a lawyer, I’m going to do something about it. And I have submitted a draught convention to a committee of, conference of legal experts, which were connected within the League of Nations. And, however, no action was taken, and then, however, but Hitler took action, and that precipitated conscience of the world to do something about it.
You had to wait till the United Nations was established to get the action that has finally resulted, didn’t you?
I would say, partially, something was done about it in London when I was a advisor to the American prosecutor, and we wrote in the genocide charge in the Nuremberg indictment. Unfortunately, the court took a strict stand on genocide and punished on the crimes committed in connection with war. So, as far as genocide committed in time of peace, as strange as it might seem, it was still a lawful thing. And therefore, I tried to interest United Nations, and I have approached three delegations, the delegations of Cuba, Panama, and India sponsored the resolution, and then we started the ball rolling.
Well, that brings us to the United Nations and to Dr. Canna who is an official of the United Nations. I think some people who’ve watched this programme may think that United Nations officials are just bureaucrats sitting back at desks. Dr. Canna, won’t you disillusionize us about that and tell how you got to be interested in genocide? It’s not a… It’s a pretty, it’s a pretty grim story, I know.
The answer is very simple. You know that I am of Czechoslovak origin and I think the name of Lidice is very well known to our very Americans.
Yes.
And so you see that if Hitler had won the war, so not only the Jews, but surely all the Czechoslovak and all the Polish people would have become victims of genocide.
And you, during the war yourself were in the French underground, is that right?
Yes, because I managed to escape from Czechoslovakia, but I could not escape from France. So I had to live there under German occupation. And of course I worked for the right cause in the underground.
Well now I’d like to get around to the United States because I think a lot of American listeners want to know some things about this convention, which I think Congressman Celler can probably answer better than anyone. Does this convention, Congressman Celler, become binding as soon as it’s ratified, become binding upon us?
Well, there’s a provision in the convention that asks the contracting parties to implement said convention to provide effective penalties for persons guilty of genocide or any other acts enumerated in the convention. There would be a moral obligation on the part of the United States to pass legislation once it is ratified, to implement it.
And is there any American tradition that supports endorsing such a proclamation, declaration as this?
Oh, there undoubtedly is sufficient tradition for that, for the ratification of that convention. This country was built up by men and women who fled religious persecution in Europe. Killing and torturing members of religious groups was not new at that time in Europe, when we… when the founding fathers gave us our constitution. That is the reason why the American people and the American leaders always disapproved of barbarities of the sort that has just been flashed to the television audience on the screen. President Wilson, a great democratic leader, tried to save the Armenian people from genocide during the First World War and shortly thereafter. The American people without distinction of party affiliation have poured forth millions to help victims of genocide, both after the First World war and after the Second World war, and also at the beginning of the century. We are at the receiving end with reference to the evils of genocide. We have to pay the piper, and therefore I would think that we should pass this international statute, ratify it, so as to prevent a recurrence of genocide.
Well, now let’s be…
I know also, Mr. Howe, that President Truman has ratified… President Truman has embraced the declaration of genocide.
Well, let’s, let me ask you one perfectly blunt question, if I may. How do you think some of the southern Democrats are going to feel about this? Will they feel that this is going to be used as another weapon against lynching in the treatment of Negroes in the South and all that, that foreigners will come meddling into their affairs?
Well, attempts will be made to give them that impression, but as I read the convention and the history of the convention, there is no intention to make, for example, lynching a crime of genocide. Genocide is that which is directed against a people…
A whole people, isn’t that it?
In whole or in part.
Yes.
But that is not involved in the crime of lynching. And I hope that the southern senators and the southern members of the house will get sufficient enlightenment on that score.
How about the American Bar Association? They’ve been…
Right, so we can stop that there, Lauren.
What’s, what’s the…
[Clip ends]
- Thanks. I played the last part because I wanted to bring in the United States of America in this, 'cause I’ll come back to that right at the end. Let me just make a few points about what Lemkin had said, now that you’ve seen him in the flesh. He mentioned of course during the little bit of the interview that he had, as to why he had really got into this idea of genocide as being central to international human rights law. He mentioned what had happened to the Armenian student, Soghomon Tehlirian who, in Berlin, had assassinated the young Turk politician, Mehmed Talaat Pasha, one of the main organisers of the genocide against the Armenians in the Ottoman Empire in 1915 and 1916. Lemkin got into a heated dispute with one of his academic teachers in Lwow about this in 1921 over the verdict of not guilty in this case. And he said, in Lemkin’s view, not the assassin, but the assassinated should have been tried for the crime of murder. His professor contradicted him by referring to state sovereignty. “Let us take the case of a man who owns some chickens. He kills them. Why not? It’s not your business. If you interfere it’s trespass.” Lemkin’s answer was, “Sovereignty cannot be conceived as the right to kill millions of innocent people.”
So the question that therefore lurks in this entire debate is why was it that genocide essentially did not have the same traction as crimes against humanity? Why was it that the more individualistic approach of Lauterpacht, which I’ll just develop slightly, had had greater influence on the Nuremberg trials? Well, part of it was because Lauterpacht was the consummate politician, and he didn’t have the awkward, difficult d'etre of Lemkin. And not only Philippe Sands, but some of the memoirs, some of the work done in relation to Lemkin, reflects that too. But it was true that what was particularly attractive to the British chief prosecutor, Sir Hartley Shawcross, with whom Lauterpacht worked to quite a considerably extent, was taken by the idea that international law should concern itself with the realisation of individual criminal responsibility, and that it was the individual who ultimately was at the centre of the entire process, not the group. And at the end of the trial, Shawcross wrote to Lauterpacht saying, “I hope you will always have the satisfaction in having had a leading hand in something that may have a lasting influence on the future conduct of international relations, that is, the crime against humanity.”
And the argument, the argument was, well, of course the Nazi defendants could not rely on a metaphysical entity which they had created and controlled when that state set out to destroy the very members of that community, and on which the rules of international law would depend. The principle of collective responsibility of government members is an essential protection of the rights of human beings and the community of nations. And therefore international law is fully entitled to protect its own existence by giving effect to the protection of individuals which make up the unit of analysis for the whole of society. And so that was the line of argument that to a large degree was taken by Shawcross and by Jackson on behalf of the United States, to a large degree, the concept of genocide did not get look in. Now, in a way, and I’ll get back to the reason for that in a moment, in a way that particular difficulty was known to Lemkin. Lemkin himself writes about the fact of going to England in 1945 to talk about this and finding very, he says, “I fly to England to address a conference of 300 lawyers from England and the continent to win support for the concept of genocide as an international crime. It’s a cool reception.” Yet the… and the reason why it was a cool reception was that the attraction of focusing attention on crimes against individuals who make up the units of analysis of humanity was of particular importance.
Philippe Sands has also correctly pointed out that one of the difficulties about genocide is if you’re talking about the intent to wipe out an entire nation, often that’s a difficult, that’s a difficult threshold to negotiate. Whereas if you talk about a whole ra… the same actions through the prism of international law, the idea of crimes against humanity, then you don’t have to prove that there was intention to wipe out the whole of the group. You can get your conviction on a slightly less problematic evidential threshold. And secondly, once you start talking about groups rather than individuals, it raises a whole range of conceptual problems about what should be the basic core of analysis. If you start with the idea, which certainly is a Jewish one, which is, you destroy one human being, you destroy the world, then you have to be sympathetic to the Lauterpacht approach. And yet it is particularly interesting that to a large degree, notwithstanding the prominence international lawyers gave to Lauterpacht in regard to crimes against humanity, it is particularly interesting how Lemkin, in the broader context, gained an enormous amount of influence. If you look, for example, at the Merriam-Webster online encyclopaedia, the definition of genocide, this is what it says. “Deliberate and systematic destruction of a racial, religious, political, or ethnic group. The term was coined by Raphael Lemkin, a Polish-born jurist who served as an advisor to the US Department of War during World War II to describe the premeditated effort to destroy a population.
It’s also interesting that in 2002, Samantha Power, who became the US Ambassador to the United Nations, set out in her Pulitzer Prize-winning book, "A Problem from Hell: America and the Age of Genocide” described how one man put genocide in the world’s conscience, referring of course to Lemkin. And in 2010, the Polish Institute of International Affairs published a collective volume on Lemkin subtitled “The Hero of Humankind”. And there’ve been some 10, maybe 12 biographies of Lemkin, far more than there have been of Lauterpacht. So it is absolutely true that although Lemkin failed to persuade Justice Robert Jackson, who he made enormous efforts, he was the chief prosecutor, by the way, US prosecutor at Nuremberg, to incorporate the idea of genocide into the charges and effectively to have it as a central feature of the Nuremberg trials, that failed ignominiously.“
So where does that leave us today? Well, there’s no question that Lemkin, through his persistence, got the convention through, in 1948, through the United Nations. And it’s also no question, it seems to me, that if you think it through, it has had a very significant influence, not as much as it should. Of course, there’ve been genocides, the Rwandan genocide, Myanmar, Darfur, and now, and others. And now, we’re faced with whether in fact what is going on in Ukraine at the moment is genocide perpetrated by the Russians, because there’s no question that they’ve targeted the Ukrainian nation for destruction, arguing there’s no such thing, according to Vladimir Putin.
The point, however, is this, that I think that both of these concepts, the one produced by Lemkin and the other produced by Lauterpacht, are of course the central documents of that body of international human rights law that emerged after World War II. And I want to now return to where we are. It is extraordinary to me, the cavalier way in which, to some considerable extent, these are now being treated. I am extremely anxious, not just because of the way Russia has treated this matter, in my own country, South Africa, the idea of either crimes against humanity, or genocide, as it might well be perpetrated in the Ukraine, seems to have been sort of just swept under the carpet as we perform some extraordinary level of acrobatics as to consider ourselves neutral, which we’re not.
The truth is, in many other countries there are crimes of a similar kind, forms of collective punishment targeted against the group, wherever that group may be, certainly must fall within one or other of those particular rubrics. So this extraordinary edifice after 1945, which was developed by these two Jewish writers who by the way didn’t like each other because, or certainly, Lauterpacht wrote a quite sympathetic review of one of Lemkin’s publications, but at the end of the day thought he was completely out to lunch, and that the idea of genocide focusing on a group was not exactly where one should go. But nonetheless, the truth was that both of them made a very significant contribution to the development of international law.
In fact, Philippe Sands, who himself is a professor of international law at University College London, has stated with reference to both Lauterpacht and Lemkin, the following. Lwow, or Lvav, or Lemberg, however you call it, "has made a singular contribution to the creation, and application of the modern international legal order. The city’s DNA is impregnated into the modern international legal order. What is it, therefore, which causes today that international legal order to be under such stress? Is it that we’ve forgotten that which occurred and which Lemkin and Lauterpacht lived through, so that we now no longer regard this as important? Is it that we are so concerned with ourselves as opposed to any regard for the other, that the idea that we would regard the individual, no matter the individual’s religion, no matter the individual’s colour, gender, et cetera, as of being central to any international order, or that we regard a group, however so defined, as being sufficiently sacrosanct that whilst they should not oppress any other group, neither should they be oppressed, that the experiences which these two men lived through in that interwar period, the anti-Semitism to which they were both subjected, the way in which they saw their families destroyed by Hans Frank and by the Nazi machine, that we have forgotten that, that to a large degree that no longer effectively is part of our lexicon, that that international system which was built by these two men is no longer?
I do not know the answer to that, but I do think it’s really quite remarkable that here were these two Jews with all of the experience that they had and that they ultimately were able, even though they disagreed with each other, to develop two concepts which were central, and must be central to the entire international law order. And whilst it is true that Lauterpacht won the day, because as I say genocide no longer applied… or didn’t apply at Nuremberg, Lemkin also has had his say, and in many ways is regarded more highly in the broader political discourse than is Lauterpacht. I leave you with this quote. Lauterpacht said, 'If fundamental human rights personality must be part of international system, then humanitarian intervention is both a legal and political principle of international society.’” Let me read that again.
He said, “If the fundamental rights of human personality are part of the international system,” and I don’t think there’s much disagreement here between Lemkin and Lauterpacht. It’s a difference of the experiences that they had, in the perspectives they had. Then Lauterpacht continues, “Then humanitarian intervention is both a legal and political principle of international society.” And yet in almost all the cases that I’ve mentioned, there has been very little humanitarian intervention. I guess there was some in Yugoslavia, but it was all botched up. And certainly in many of the other parts of the world, people have been left to their own resources, notwithstanding perhaps suppliers of weapons. But in the final analysis, the real thrust of this idea that international human rights law was to develop an international community in which we all looked after each other one way or the other that maybe hit its high point in ‘48, but it’s certainly been downhill over the last 20 years.
I’m now going to take a series of questions because I would prefer to try to explicate. I see there are quite a few and I’m going to deal with them in the last 10 minutes. Let me start.
Q&A and Comments
Abigail asks a question and puts a point. The concept of poverty as a human responsibility is first recognising the Old Testament agricultural laws of shmita. You’re quite right. In fact, you know, I don’t know why Jews are so scared to be social democrats, because at the end of the day many of them aren’t, because at the end of the day, the laws of shmita, of jubilee, et cetera, were there as a form of redistribution. They were there to curb levels of egregious inequality. They were there to recognise that the dignity of human beings was such that you could not have dignity in the midst of either extraordinary poverty, which took away human agency. And indeed it’s true, that the Jewish tradition, at its best, has a lot to offer in this particular regard. In fact, perhaps I should give a whole lecture on this because it’s not an unimportant component, which seems to be lost in the morass of what I suspect I call piddle pool conversations about the tradition which go nowhere other than to decide which matzah is more kosher than another, rather than talking about the socio-economic structure of a society, which is central to the point you make, Abigail. And the agricultural basis, you say, of economics is showing its face today in the agricultural effect of the Ukrainian war on the economics. Yes, I agree.
Q: Robert says, what was the British and American stand on the question of genocide? A: I’ve tried to explain that, that to a large degree they bought into the individual idea that the state owed a responsibility to the individual, that you couldn’t get away with that, that if it was going to be defined as the destruction of groups, there would be a whole range of evidential questions, which would… barriers and deflect from the central aim of international human rights law, which was to protect the individual. If you did that, essentially everything else flowed from that and you did not have to go into all sorts of definitional problems as to what constitutes the group. Brenda.
Q: Do you think that the deportation of asylum seekers in Rwanda is a crime of international law of human rights? A: Yes, I do, as a matter of fact. Sorry. I do. May not be genocide, it may not be a crime against humanity, but I think it’s an awful… Well, I think I’m in the strange position of now having Prince Charles agree with me in this particular instance. And certainly, it seems to me a breach of international human rights law.
Gerald says, while there’s an emphasis on human rights, is there not a correlative where, sorry, being correlative, being human obligations. Well, that’s the Jewish position. The Jewish position is, the tradition is, that we have obligations, not rights. And out of those obligations emerge rights, but they’re correlatives. In other words, I have a right, and you have an obligation to respect that right. I, let’s say, have a right to freedom of movement. You should respect that and you have an obligation to do so, perhaps imposed upon the state and increasingly in constitutional law on other private individuals. So they are linked. Can human rights, says Elizabeth, be divorced from economic wellbeing.
Q: How difficult might it be to guarantee and afford such rights if economics cannot adequately provide their means? A: Absolutely, Elizabeth. And let me say, that I’ve just concentrated on Lemkin and Lauterpacht, two very central planks of international human rights laws, as I indicated. It’s curious how they come from the same place with the same experience. But it is also true that we now talk about second and third generations of rights. We talk about social and economic rights. My dear friend, the late Professor Etienne Mureinik, arguably the finest academic public lawyer that South Africa produced, certainly of my generation, I remember him saying, you can’t have freedom simply because you have the right to vote. If you wake up in the morning in the… on the South African veld without any roof over your head, in pelting rain and with no food to eat, and you suddenly stagger off to the ballot box, you can’t claim that to be democracy. There have to be basic provisions for individuals so that they can live a dignified life. And that was why social and economic rights, the idea that the state had minimum obligations under international law to provide basic food, shelter, medical care, to the citizens of that country and perhaps inhabitants of that country, to take the broader view, was central to the enterprise. And why you’ve got, you know, the international covenant on social and economic rights and a committee that seeks to enforce that, is precisely because of the insight you’ve made. And I wish we would think more about that. Thank you very much for that very important question.
Arona, an incredible statement by the US representative of the crime of lynching blacks had nothing to do with genocide. What kind of absurd mental thinking that… Well, yes, of course I agree. It was. I wanted to play that for you. It is an extraordinary statement. I think, I think what what was being said was, would you regard that as a genocide? Well, I suppose if the, again, and that is exactly the point that Sands makes, if your intention is to wipe out the group, to be sure it is. If your intention is merely because you have racist intent against a segment of people, not necessarily the whole group, well that’s certainly a crime against humanity, but it might not well meet the point of genocide. I know he put it very crudely. And that’s partly because what is so fascinating to me is the reluctance of the United States to sign on to a whole range of international treaties precisely because of anxieties of what might happen back home. Nothing seems to have changed, I’m afraid. And I would imagine for many African-Americans in America listening to that answer now, they’d say, no, what has changed so much? Would eliminating mass lynchings address reflect the political position of that time? I, again, I don’t think so. But I mean, there’s no doubt about it, that, you know, lynching of people, as it was, was a crime of, firstly it’s murder. But secondly, if you’re going to target a whole lot of people, of course it was an international crime against humanity.
Certainly I think Lauterpacht would’ve regarded that. Romy says, I always find it baffling how when the world was moving towards developing international human rights after the Holocaust, South Africa was just starting with apartheid. Well, it was baffling, I suppose. We were always out of sync. And, I mean, there are a whole range of reasons for that, that South Africa had been a racist society long, of course, before apartheid emerged. And that to a large degree, what was… that apartheid reinforced the racism which continued, and we all know as well of the ineptitude and the mean-spiritedness of the United Party at the time. I think the one person who would’ve probably agreed with you at that moment in time was Hofmeyer, but he died rather too young to make an influence. And white South Africans never embraced the idea of human rights. They suddenly started to embrace it, other than, of course, glorious minorities of people who were very much part of the struggle one way or the other. But the vast majority of them only started to realise, well, in the National Party that human rights were important when they realised they might lose power. Stephen. I’ve read that Lemkin was successful in inserting the term genocide into the Nuremberg prosecution by Ben Ferez, even if not as a central tenet. Well, it might have been in the odd case, but certainly neither Jackson nor Shawcross in the major trials of Nuremberg had any, added it. There was one reference by Maxwell Fyfe in his address, he was one of the British prosecutors, but that was as far as it went. Romaine. Forgetting is often politically and economically convenient, unfortunately. Yeah, I’m afraid to say. Despondent. It says a lot about humanity. Yes, Abigail, I agree. Equality of all individuals under God is a biblical… I think I’ve spoken about that.
Q: Does Israel recognise the Armenic experience as genocide? A: I don’t know the answer to that, but I think it’s a very good question. I can try to find out.
Q: Do you consider the possible famine in the world as a human rights issue? A: Most certainly, and certainly if you regard the fact as part of international human rights law is the socioeconomic rights, the fact that people are deliberately preventing food from getting into what’s is a crime of its own, but it’s certainly a breach of international law, and it will be interesting if one could develop a case like that. But who are you going to hold accountable. Estelle.
Q: Is evidence being gathered that the possibility of punishment of Russia’s genocide in Ukraine? A: Well, of course, on one level, yes, by the Ukrainians and others, but it’s, you know, really are we going to sort of basically have an international trial where Putin is going to be held to account? I very much doubt it. Already you have people like Macron saying, well, you know, we mustn’t treat him so badly, he’s not such a bad chap. I use that term for exaggeration, but just to illustrate the point. And that’s the problem. The problem is that, you know, you get victors’ international law, but unless someone is vanquished, very little else happens in that particular regard. And so I must say, tragically, I doubt that too much is going to happen there.
Monty. Enlightened sophisticated countries and organisations are being delusional when they think they encourage human rights laws in countries that are still struggling to emerge from the Stone Age. Well, yes, Monty, maybe they aren’t the solution, but you know what, it’s still important that in fact the entire body of international human rights gets promoted. And let me say this, I’m less concerned about countries which you say are struggling to emerge from the Stone Age, if by that you also include Brazil, India, the United States, Hungary, et cetera. They’ve long emerged from the Stone Age, but they are really on the retreat in this particular regard.
Linda. Palestinians having failed at their devious tactics have now invoked human rights as their saviour and throw around genocide in the mix. Well, maybe they do, but I mean, we need to debate these questions about Palestinian rights. And of course that’s a totally separate topic than tonight. But again, the question is, not so much whether it’s genocide, but whether in fact, various forms of activities, of conduct on both sides, contravene international human rights law one way or the other. And last night I was part of a debate discussion about this, very respectful discussion, and I think that’s the sort of discussion one would like to have about these questions. But I agree with you that the concept of genocide is thrown around. That was the point that Sands was making in general terms and which Lauterpacht was concerned about.
Q: What are your views on the changes to human rights in the UK? A: Well, all I can say about the UK is that, you know, I used to think that the fact… Well, Brexit I think had an effect. ‘Cause obviously the idea beforehand that Britain was subject to the broad human rights jurisprudence of the European community was important. I’ve no doubt the judges will continue to try to police that as best they can. But I think one would be fair to say that a British government led by Boris Johnson in this particular point in time really doesn’t have human rights to put it bluntly or human rights protections as uppermost in their mind. And that’s a great tragedy. It’s a great tragedy because if countries like Britain and the United States of America slip, then to go back to Monty’s question, countries which might not be in the Stone Age, but I would call developing countries, are really not going to be particularly inspired. It’s important that, in fact, the kind of human rights developments that have taken place in these countries like the UK and the USA are protected, promoted, and developed.
Q: Is the, sorry, is the RF trying to kill Ukraine or change its political leadership? A: Well, the truth is, when you say something, Robert, such as Putin does, that you deny the idea that the Ukraine is a nation, that they’re part of Russia, that you therefore want to, as it were, just regard them as a bunch of Nazis or goodness knows what it is, and you therefore target them, qua the fact that they are a nation of their own, for all sorts of reasons that a number of people, myself included, have advanced in earlier Lockdown talks, then quite frankly, it’s more than just a question of political leadership. Whilst it’s true, I suppose Putin would be perfectly satisfied had he managed to impose, as I think was his first tactic, some form of puppet administration in Kyiv, that would’ve been his first prize. But certainly the rhetoric, the rhetoric which was used goes way beyond that, and it’s deeply disturbing, and we should be condemnatory of it all the time. Regarding Israel Palestine, Yehuda, it is not a question of genocide, but other matters. As Linda said, though, genocide has become a common allegation.
No, I don’t think it’s committed genocide because, you know, no, but I do think that we need to debate questions of what happens when you do destroy homes as part of a collective punishment, and when you do abrogate the rule of law. Does that, on the other… And we should also be debating that when you lob indiscriminately rockets into urban areas of Israel that precisely, that’s not genocide, but it certainly a fundamental breach of international human rights law. So what I’m simply suggesting is, can we please have a proper conversation about this? And all I wanted to say, where I agree with Linda, is the indiscriminate use of the word genocide precisely for all the reasons I’ve advanced this evening, really don’t have any traction in my view in this case. But that does not mean that, you know, you say, oh, well everything is fine, it isn’t fine. And there are worrisome aspects on both sides, and that’s the great tragedy, which if we could debate sensibly and respectfully is something we should talk about, simply because it’s important. It seems to me that I’ve come to the end of my questions.
So I just want to thank everybody for participating in this discussion, which of course has raised a whole lot of really important, if not difficult questions. But I think at the end of the day what is important is we should be enormously proud that these two Jews from part of the world now which is under such threat, did courageously and imaginatively construct fundamental planks of international human rights law to protect individuals from crimes against humanity, destruction of their groups, and much more than that. That what they did was that they essentially, if you want from a Jewish position, really made the point that the killing of one person is the destruction of a whole world. And if we held onto that principle more than any other, well then perhaps Lauterpacht might have been right. But we should equally note that Lemkin, particularly as a result of Darfur, Rwanda, Myanmar, was much more prescient than perhaps he was given credit for when he battled to get the concept of genocide accepted at the time of Nuremberg.
So thank you very much. Wendy, that’s my fill for the night.