Philippe Sands: From London to Lviv
THE BIRTH OF HUMAN RIGHTS LAW
Podgers: Before you began to explore these areas, had you been aware of the important roles that Lauterpacht and Lemkin had played in the development of international law?
Sands: Yes, yes. I mean, Lauterpacht, for me, is basically the most famous international lawyer of the 20th century. He is absolutely, hugely important. He’s essentially the founder of modern human rights. Lemkin I knew less well, but I knew he was the man who invented the concept of genocide, and so I slowly came to know him better.
Podgers: As you say, Lauterpacht developed the concept of crimes against humanity, which applies to the systematic destruction of individuals in very large numbers, while Lemkin developed the concept of genocide, which takes a different approach, of course, by describing the effort to destroy entire groups of people. Why do you suppose each man articulated crimes that each carried such a different emphasis? And how are those two crimes related to each other?
Sands: I thought a lot about why they took their different directions and, of course, I can’t answer that. There are some superficial similarities. They came from the same part of the world. They had both effectively grown up in Poland and the Austro-Hungarian Empire. They were both Jewish. But there the connections separate. Lauterpacht was more of an urban character. He grew up in an environment which was very highly educated. By contrast, Lemkin lived in a rural community. He grew up on a farm.
And I just think they took their different directions. Lauterpacht is more the establishment figure, to use an English term. Lemkin was a loner who just did his own thing in his own direction. I can only speculate as to why they took their different directions. What they shared was the belief that the law can make a difference, that you can protect people from atrocity and killing by using the law and, in particular, international law. That’s their point of connection. But there the connection ends.
Lauterpacht wanted to focus on individuals because he worried the protection of groups would end up replacing the tyranny of the state with the tyranny of the group; and to a certain extent, when we look around the world today, it could be said that that has happened. Lemkin said sure, but the reality is people get killed not because of their individual qualities but because they are a member of a group, and the law must reflect that.
Podgers: Of the two crimes, is one more important than the other, or are they what we would call moving targets that depend on the facts of the case?
Sands: They both have significance. What has happened since 1945, in the 70 years that have passed, is that crimes against humanity and genocide, which exist alongside two other international crimes—war crimes and the crime of aggression—have evolved. As you know, for about 50 years nothing much happened until the conflicts in the former Yugoslavia and Rwanda in the 1990s.
And what has happened since then is that genocide has, if you like, gone to the top of the pole. It seems the crime of crimes. All victims want their crime to be characterized as a genocide. They don’t want it to be simply a crime against humanity, which seems a lesser crime. And so that has created a hierarchy.
To illustrate, if the president says that something is a genocide, it will be on page 1 of the New York Times. If he calls it a crime against humanity, it’ll be on page 13. So the two have evolved; and somehow, and wrongly, genocide has come to be seen as the more important, the more terrible of the two, and I think that is problematic. It has tended to diminish the significance of crimes against humanity, and I think that’s regrettable.
POLITICS AND GENOCIDE
Podgers: Didn’t George W. Bush at one point get into that semantic situation? Didn’t he call what was going on in Sudan genocide? And I recall when it happened it got an incredible amount of coverage.
Sands: It was an absolutely huge moment that I remember very, very well indeed in 2005 and 2006. You will recall that it coincided with the publication of the pictures of Abu Ghraib, and so the cynic might say it was a way of deflecting attention. But perhaps I’m not necessarily a cynic.
It was also the moment when the United States moved away from its complete hostility to the International Criminal Court because President Bush’s administration also agreed to the referral of the Sudan situation to the ICC, so it was a hugely important moment. And indeed, it was characterized as a genocide. More recently, of course, John Kerry [secretary of state during President Barack Obama’s second term] called the crimes against the Yazidis and the Christians and the Shiites in northern Iraq a genocide.
Podgers: Do you think that in some ways these political uses of the term genocide and the way that some leaders and politicians throw the term around has reduced its impact?
Sands: Well, it has a legal characterization and it has a political characterization, and the two are not the same. So many things are bandied around as being called a genocide. It is very hard to prove a genocide. So genocide, under international law, is a very different thing from what is bandied around as a genocide in much of the media and in more general political discussion.
THE NUREMBERG TRIALS
Podgers: Both genocide and crimes against humanity were elements in the charges against the Nazi leaders who were tried at the first Nuremberg trial.
Sands: I can give you the precise dates. On Aug. 6, 1945, crimes against humanity was in the statute creating the court. On Oct. 18, 1945, genocide was in the indictment against the 22 Nazi war criminals. So absolutely in the summer of 1945 both concepts came into being.
Podgers: Now among the four prosecution teams representing the Allies—the U.S., Soviet Union, Britain and France—who championed including genocide and crimes against humanity among the charges most strongly?
Sands: The Brits and the Americans were against genocide, for different reasons. The Americans were against it because Southern senators were concerned that it would be used as a concept by blacks in the Southern states, and the Brits were against it because they worried that the inhabitants of colonial territories would use it against them.
Eventually, in the course of the trial, the Brits relented. And Hartley Shawcross, the British attorney general, did use the concept in his closing arguments. But Robert Jackson [the Supreme Court justice who served as U.S. chief prosecutor] and no one from the American team ever used the word genocide in court. It was simply passed over. And the judges, in the end, followed the lead of Robert Jackson and the Americans, and you will not find any reference to the concept of genocide in the Nuremberg judgment.
It took until 1988 for the United States to ratify the Genocide Convention. And the circumstances of the ratification of the Genocide Convention was that President Reagan made a visit to a cemetery in Bitburg in Germany in the summer of ’88, and it turned out he had accidentally, unwittingly visited some graves of SS officers. And following that, he changed tack and supported the ratification of the Genocide Convention.
Podgers: What was the U.S. attitude regarding crimes against humanity?
Sands: Much more relaxed about it. It didn’t pose a domestic problem.
Podgers: What roles did Lauterpacht and Lemkin play in Nuremberg?
Sands: Lauterpacht was a member of the British team, and Lemkin was associated with the American team. They never actually worked together, but they were both involved in the Nuremberg trial.
Lemkin was not a formal member of the American team. He used the office of Robert Kempner, who was a member of the team, and he sort of hung around trying to get people to push for genocide. But he did not make arguments before the court, and I have not been able to find a photograph of him in the courtroom, despite examining literally thousands of photographs.
Podgers: I know there was quite a bit of debate and discussion in the months prior to the beginning of the trial itself about what charges should be included, how they should be defined. How involved were Lauterpacht and Lemkin in those preliminary discussions, and how important were they in each getting their theory included in the charges?
Sands: They both played an absolutely central role. Lauterpacht, on the 29th of July 1945, was the one who put the idea to Robert Jackson of including the words crimes against humanity to describe the killings of individual civilians. And it was Lemkin, in early October 1945 in London, who persuaded all the full powers to put the word genocide into the indictment.
ENTER THE NAZI EXECUTIONER
Podgers: When did you decide that there was a book worth writing about what you had discovered regarding your grandfather, Lauterpacht and Lemkin and the other key figure, who we haven’t talked about yet?
Sands: Very good question. When I first went to Lviv in October 2010, I went with my mother, my son and my aunt. The job was to deliver a lecture and to see if I could find my grandfather’s house where he was born. I had no idea I was going to write a book. The idea for a book emerged in the following year when I had lunch with a friend who was an editor who just said to me this would make a great book. At that point, the book was just about three men: my grandfather, Lauterpacht and Lemkin.
And it was only then, in reading myself into what had happened—in Lviv, Lemberg, in the summer of 1942—that I came across Hans Frank. And I felt a need to have a fourth character because you needed to have a counterpoint, someone who had a very different view of the world and of the law.
Podgers: And he certainly fit the bill.
Sands: Absolutely. What a character. What an unbelievable, appalling character. But, of course, also a lawyer, which makes him very interesting.
He was German. He studied in a very—I think he went to Munich University, went to a very fine law school. Qualified as a lawyer in the 1920s. In 1928, answers an advertisement in a newspaper, in the Nazi newspaper, and becomes a lawyer for the Nazi Party, and becomes Adolph Hitler’s personal lawyer from 1928 to 1933, the principal lawyer dealing with all the cases against senior Nazis in Germany until Hitler came to power in 1933.
In recognition of his fine work for the Nazis, Hitler made him minister of justice in Bavaria. And in 1939, he appointed him as his personal representative in occupied Poland and made him the governor general of occupied Poland. In 1942, the Territory of the Government General, as it was known, included Galicia and Lemberg, and he arrived in Lemberg in August 1942 and announced the Final Solution in that city. And within a few days, 125,000 people had been killed, murdered. And amongst those people were members of my grandfather’s family, Lauterpacht’s family and Lemkin’s family, so Frank is the point of connection.
And, of course, what happens next is he carries on his mischievous ways. He is then apprehended by the Americans on the 4th of May 1945, caught with a vast number of incredibly fantastic paintings, world-famous paintings, and he becomes Defendant No. 7 at the Nuremberg trial, and Lauterpacht and Lemkin prosecute him. But what they do not know when the case starts on the 20th of November 1945 is that the man they are prosecuting had responsibility for killing their entire family, and they only discover that nine months into the trial. A pretty unbelievable scenario.
Podgers: That must have come as an incredible shock.
Sands: You know, I’ve thought about that. I’ve asked myself how would it feel to be involved in a case and to discover that the people you are prosecuting are responsible for killing your entire family in a particular location. I mean, obviously in a modern age you would withdraw from the case. But neither of them did.
Podgers: It’s interesting that you say that today a prosecuting lawyer would likely step out of the case. Should lawyers be required to step out?
Sands: Well, it’s a really good question. I know the British bar rules. I’m an English barrister. I’m a queen’s counsel. We have very strict rules. I sit also as an arbitrator. I know that I have to be squeaky clean as an arbitrator; and the moment there’s a personal connection, I either remove myself or declare it.
I would find it personally very hard to prosecute a case against someone who had allegedly killed 70 or 80 members of my family because I think I would not be able to maintain a neutral, independent disposition in relation to that individual. I don’t know how it would work at the New York bar or the D.C. bar or the Idaho bar. But in the English bar it would be pretty tough to run that case.
Podgers: East West Street is almost novelistic in tone and format as it unravels the intertwined stories of these four very distinctive men. How did their lives unfold during the later war years and then into the postwar period?
Sands: I love that you’ve focused on its being novelistic. One of the things I very much appreciated is a lot of the people who’ve reviewed it and commented on the book are in fact novelists. And many of the reviews have said who would have thought that a book about international law could be so darn readable. And it makes me chuckle. I like that.
And I think the reason that it’s readable is that the law is interesting if you write about it in certain ways. And we know that the law is basically about people. It’s about judges, it’s about lawyers, it’s about defendants, it’s about parties, and those are individual human beings, each of whom has their own story.
I’ve permitted myself to explore the lives of these men as human beings, not just as lawyers. And I think that has resonated. I’ve had so many letters from lawyers, from judges, from arbitrators, from prosecutors, talking about the resonance the book has with their own lives and the challenges they face in dealing with their daily work as lawyers. But people forget that lawyers are human beings, and this book helps bring that to life, I think.
Frank’s life came to an end on the 16th of October 1946. He was hanged at Nuremberg. His son tells me that he’s against the death penalty “except in the case of my father.” That’s an actual quote. And it says a lot about the son that that would be the situation.
After the Nuremberg trial, Lauterpacht became a judge at the World Court in The Hague, a very famous judge. Lemkin spent the rest of his life trying to persuade countries to agree and then adopt the Convention on the Prevention and Punishment of Genocide. By 1960, both men were dead, relatively young, probably not entirely satisfied with their lives, which had been painful and difficult, but both having made a huge contribution.