DECEMBER 19, 2016
EAST WEST STREET tells of how two men, Hersch Lauterpacht and Raphael Lemkin, born within three years of each other and students in the same city on the eastern outskirts of Europe, used their considerable intelligences to work out how the law could best protect humankind from mass killing. For Lauterpacht, who formulated the concept of “crimes against humanity,” it was all about the individual, protecting inalienable rights that could be enforced against the State. For Lemkin, who devised the concept of genocide, the important thing was the group: if individuals were persecuted because they were members of a minority, that minority should be recognized, respected, and protected. Both men desperately wanted the crimes they had formulated to be included in the indictments at the Nuremberg trials.
In East West Street, Philippe Sands, himself an international human rights lawyer, writes the biography of these two juridical concepts, describing how they intersected at Nuremberg and became part of international law. In telling the stories of Lauterpacht and Lemkin and their ideas, Sands tells the story of the dark times of the 20th century — and also the story of his family, members of which were murdered by the Nazis. Individuals are brought to life, glorious and flawed. And, since it is also the story of researching all these stories, East West Street is about group endeavor, of what humans can limitlessly achieve when working together. It’s done with wit and love and brilliance and an appreciation for the small joys of life, such as dark Russian tea drunk from a delicate porcelain cup or a plate of fine German cheeses.
Hersch Lauterpacht, born 1897, and Raphael Lemkin, born 1900, both studied law in the lively intellectual metropolis of Lemberg. That is, it was Lemberg when Lauterpacht was a student and part of the Austro-Hungarian Empire. By the time Lemkin got there, it was Lwów, part of interwar Poland. After the outbreak of World War II, under the occupation of the Soviets, Lwów became Lvov. Now in the Ukraine, it is Lviv. What even these name changes conceal is the fact that the city changed hands eight times between 1914 and 1944.
Lauterpacht went on to become professor of international law at Cambridge, Lemkin took up a post at Duke. Lauterpacht was “practical,” Lemkin was “passionate”: in many ways, says Sands, they were the very opposite of each other. Their difference of legal opinion centered around the question of how best to prosecute war crimes. Protect the individual, says Lauterpacht. Protect the group, says Lemkin. Lauterpacht focused on the individual’s inalienable rights, enforceable against the state — an unpopular idea in pre–World War II Europe. In Cambridge, in the summer of 1945, he was visited by Robert Jackson, US Attorney General under FDR and the future American chief prosecutor at Nuremberg. On a warm July afternoon, the two men sat in the garden and Lauterpacht suggested that atrocities against civilians could be categorized as “crimes against humanity.” Jackson liked the practicality of the idea.
For his part, Lemkin, safe in Stockholm where he had taken refuge in 1940, was combing through the masses of decrees which the Nazis had radiated across Europe. He identified three stages in the effective annihilation of a group: (1) denationalization (sever the link of nationality between the group and the state); (2) dehumanization (remove legal rights from the group); (3) spiritual and cultural eradication. (How quickly, how insidiously it all happens.) His findings led him to formulate the crime of genocide — Sands reproduces the scrap of paper on which the word appears for the first time, a fragment to shore against our ruins — on the basis that individuals are targeted because they belong to certain groups. Both Lauterpacht and Lemkin were determined that the crimes they had conceptualized would feature at Nuremberg.
But before Sands gets to Nuremberg, there are many roads to travel. His research into Lauterpacht, Lemkin, and his own grandfather, Leon Buchholz — also from Lemberg/Lviv — have him criss-crossing the globe. Sands takes us from London, where Lauterpacht and his wife Rachel studied and where Sands now works as a barrister; to Paris, where his mother was escorted as a child in 1939; to Vienna, sometime home to his grandfather and grandmother. He travels to New Jersey, Miami, and Massapequa on the Long Island coast, paying visits to one of the last surviving Jews of Zółkiew, the niece of his mother’s rescuer and the granddaughter of a man who was possibly his grandmother’s lover. Back in Europe, he visits the chapel in Norwich which his mother’s rescuer once attended. In Hamburg and Kraków, he spends time with Niklas Frank, son of Hans Frank, the Nazi Governor-General of Poland. He visits the Kensington flat of Lady Dundas (daughter of Lord Justice Geoffrey Lawrence, chief British judge at Nuremberg), who attended the trial as a young woman and cannot excise from her mind the exhibits of tattooed Jewish skin. In St. Thomas Church, Leipzig, he listens to Bach’s St. Matthew Passion, trying to understand Hans Frank’s state of mind. In Tel Aviv, he spends two days with one of his grandfather’s nieces — “the girl who chose not to remember.” This is no whistle-stop tour. Sands savors the encounters, and there is a deep humanity in his detailed observation of his large cast of characters. In Tel Aviv, Herta Gruber, over 80, has prepared herself for his visit with “a gash of freshly applied deep red lipstick.” In Norwich, he is struck by the face of another octogenarian, Grace Wetherley — “strong and lined, eyes alert and bright.” Distrustful of lawyers, Wetherley uncoils sufficiently to give him vivid information about his mother’s rescuer.
These details matter. Sands notes that, in his courtroom experience, there is emotional relief to be had even in stating the evidence. And so it is important that a boy stood for a photo with his feet pointing in different directions and that a 12-year-old girl, watching her mother being taken away, noticed the “clarity of a dress and high-heeled shoes.” The process of careful, painstaking recovery is executed with the forensic accuracy of the law and punctuated with gleefully celebrated successes. And there is another reason why the stories of the researches are as indispensable as the findings. The connections and coincidences Sands unearths are proof of the vast web that links people across time and place, the common thread of our humanity. So let us applaud archivists and laud librarians and feel grateful for neighbors who can translate German and elderly chapel-goers who remember people who were old when they were young and students who attend conferences and ask game-changing questions.
In the midst of the conversations that make up the book’s rich texture, something else is increasingly apparent: silence. In Sands’s grandparents’ apartment in Paris, the chatter of Lemberg’s cafes has turned into “the language of concealment and history.” Archives have been lost, laughter stilled. Photographs which might have been expected have never been taken. The information he seeks is “hidden information, coded in language and context,” a situation requiring new skills of reading and listening. Sands is adept at letting the silences resound. In a restaurant in Kraków with Niklas Frank (who despises his Nazi father and daily checks the photograph taken immediately after his hanging to make sure again that he is dead), he encounters a “serene and distinguished” woman, a Jewish-Brazilian academic forced out of the city in 1939 as a 10-year-old. The woman looks at Niklas Frank and asks, “And you are a Jew from Israel!?” Frank immediately replies, “Quite the opposite. I am a German; I am the son of Hans Frank, the governor-general of Poland.” Sands writes:
There was a fleeting moment of silence.
Then Niklas stood and rushed away, out of the restaurant.
It’s a tiny detail, but letting the instant of silence stand as a single line before describing Niklas’s reaction allows it to resonate beyond its fleeting moment. That silence — and others like it — gives us licence also to respond with silence, marking both the fact of what has happened and the fact of avowing it.
But there is an even more extraordinary silence than this in East West Street. As he researches his grandfather’s story, Sands comes upon a devastating possibility: that Leon Buchholz may not in fact be his grandfather, that his grandmother might have had an affair in Vienna with a man called Emil Lindenfeld. Having praised the painful honesty of Niklas Frank in acknowledging his father’s acts (and having confronted Horst von Wächter, son of the Nazi war criminal Otto von Wächter, somewhat less successfully with his father’s), Sands is obliged — though the “transgression” is of an infinitely lesser degree — to question his own forebears. If he had been less candid about his reluctance to do so, he would have been less credible about the pain of others.
The interweaving strands lead inexorably to Nuremberg, which Sir Geoffrey, called “unique in the history of the jurisprudence of the world.” It was no fake or show trial: the prosecutors were genuinely concerned that some of the defendants might be found not guilty. There they sat, as the American war correspondent Martha Gellhorn later described them: Goering, whose “terrible mouth wore a smile that was not a smile”; Hess, “weird, inquisitive and birdlike”; Ribbentrop “rigid as the blind”; Kaltenbrunner, his face “terrifying even now when it could bring fear to no one”; Frank, “sheltered by dark glasses,” with “a small cheap face, pink-cheeked, with a little sharp nose and black sleek hair.” We have all heard the litany of atrocities, and it will be forever necessary and important to remind ourselves of them. Sands quotes testimony to harrow the heart. But he also quotes a sentence from Robert Jackson’s opening speech that we also need always to keep in mind:
That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of the law is one of the most significant tributes that Power has ever paid to Reason.
Defining the height of human civilization after years in which humankind revealed its darkest depths, these words are as important as any words have ever been.
In the event, both Lauterpacht’s crimes against humanity and Lemkin’s genocide featured at Nuremberg in Sir Hartley Shawcross’s brilliant closing speech for the British prosecuting team, though genocide was something of a passing reference and Shawcross threw the weight of his advocacy behind the idea of the individual as the “ultimate unit of all law.” In the years that followed, the General Assembly of the United Nations introduced both formulations into international law. On December 9, 1948, the Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, the “first human rights treaty of the modern era.” Lauterpacht’s work inspired the Universal Declaration of Human Rights, adopted by the Assembly the following day.
In an epilogue, Sands names the people (and one state) who have been indicted for or convicted of genocide or crimes against humanity in recent times: Jean-Paul Akayesu, Augusto Pinochet, Slobodan Milošević, John Kalymon, the state of Serbia, Omar al-Bashir, Charles Taylor. “The cases go on,” he writes, “as do the crimes.” Sands describes himself as “oscillating” between the merits of prosecuting for genocide or for crimes against humanity. The former, so important for protecting groups, nonetheless has the effect of reinforcing a “them and us” mentality and so risks recreating the very conditions it is designed to keep at bay. The latter, which does not depend on group identity, is less apt to foster the sense of belonging on which depends so much human achievement. Lemkin/Lauterpacht: The legacy of the men from Lemberg are legal concepts developing in tandem, strengthening international law and safe-guarding the citizens of the world.
At the very end of this unforgettable, consternating, heart-warming book is another journey, quite short in actuality, though emotionally fathomless. Sands goes by train from Lviv to Zółkiew (Lauterpacht’s birthplace) and then, in the company of the town’s historian, walks along its east-west street, across fields and into the woods. They reach a clearing where water, mud, and reeds fill two great sandpits. On March 25, 1943, the Nazis drove 3,500 of Zółkiew’s Jews to these pits, among them Lauterpacht’s uncle David and Sands’s own great-great-uncle Leibus. The Nazis then lined them up and shot them. Contemplating the water more than half a century later, Sands says that, for a brief moment, he understands. I take it that he finally comprehends what lay behind his grandfather’s years of silence. But we might also understand that things happen very quickly, that the rule of law is our best hope in times of darkness, and that we must do all we can to protect it, even as it protects us.
Kate McLoughlin is professor of English Literature at the University of Oxford. Her publications include Authoring War: The Literary Representation of War from the Iliad to Iraq (2011) and, as editor, The Cambridge Companion to War Writing.