Tag Archives: crimes against humanity

Three Jews From the City Now Called Lviv

 

Philippe Sands, East-West Street:

On the Origins of ‘Genocide’ and ‘Crimes Against Humanity’ 

        Philippe Sands is a distinguished, London-based international human rights lawyer who has written prolifically on international law, taught the subject at the university level, and handled human rights cases arising from Chile, Congo, Rwanda, and the ex-Yugoslavia, among others. He is also the grandson of Leon and Rita Buchholz, Jews who fled Vienna in the World War II era. Like many children and grandchildren of Jews who escaped Hitler’s clutches, Sands received little detail from his grandparents — or his parents — as he was growing up about the circumstances leading his grandparents and their infant daughter, Sands’ mother Ruth, out of Austria. Uncovering these details is one of several threads running through this multifaceted work, East-West Street: On the Origins of ‘Genocide’ and ‘Crimes Against Humanity,’ a masterful blend of family memoir, Holocaust remembrance, and legal history.

          As his subtitle suggests, Sands’ work is also about the evolution of the legal concepts of “genocide” and “crimes against humanity,” today two pillars of international human rights law; and about the leading legal scholar behind each, Rafael Lemkin and Hersch Lauterpacht, respectively.  The two scholars were at the forefront in the development of a powerful idea that began to take shape after World War I and assumed greater urgency as World War II unfolded and Nazi atrocities multiplied: that a strengthened international legal order was necessary where nation states and their key actors could be held accountable, thereby ending the notion that state sovereignty allowed a state to pursue any policy it chose toward its citizens.

         But from this common starting point, the solutions Lemkin and Lauterpacht pursued were almost polar opposites.  Lemkin nearly singlehandedly came up with the notion of genocide as a term to describe state policies that single out persons for inhumane treatment because of their membership in a particular group. Lauterpach, rejected group membership as a basis for holding states accountable.  Nation states and their actors, he countered, need to be held accountable for their inhumane treatment of individuals — for what he termed their crimes against humanity.

          Sands’ grandfather Leon Buchholz and the two legal scholars were Jews and roughly contemporaries, with links to the same city, Lviv, today part of Western Ukraine.  Buchholz was born there in 1904.  Lauterpacht, born in nearby Zółkiew in 1897, moved to Lviv with his family in 1911 and studied law there. Lemkin, born in 1900 on a farm at some distance from Lviv, moved to the city in 1921 to study law (East-West Street, Sands’ title, refers to a street in Zółkiew where Lauterpacht and Buchholz’s mother lived for a time, on opposite ends).  Lviv itself plays a major role in Sands’ story.

          Today’s Lviv reflects the upheavals of the 20th century.   When the three young men were growing up prior to World War I, the city was known as Lemberg. It was the largest city in Galacia, a province within the Austro-Hungarian (or Hapsburg) Empire, and a vibrant melting pot of Poles, Ukrainians, Jews and others.  After World War I, the city became part of a newly independent Polish state and was known as Lwów. The three young men acquired Polish citizenship at that time.  The Soviet Union occupied the city at the outbreak of World War II, in the aftermath of the secret 1939 protocol between Nazi Germany and the Soviet Union partitioning Poland (the subject of Roger Moorehouse’s Devils’ Alliance, reviewed here in May 2016).   In 1941, Germany retook the city from the Soviets, who in turn drove the Germans out in 1944.  The city then became part of Ukraine and the Soviet Union and assumed its present name. It became part of an independent Ukraine with the collapse of the Soviet Union in 1991.

        None of the three men was present in Lviv during World War II, but their war experiences were similar in one grim respect: each lost parents and most other family members left behind during the German occupation.  Those loses can be traced in no small measure to Hans Frank, a genuine villain whom Sands adds to his story of the three Jewish men from Lviv.  Frank, born in Germany in 1900, the same year as Lemkin, was Adolph Hitler’s personal lawyer and a German legal scholar of some stature who fashioned many of the Nazis’ idiosyncratic legal theories – theories that, in opposition to those of Lemkin and Lauterpacht, subordinated the individual to an all-powerful state and emphasized the inviolability of state sovereignty.  Frank became governor of German-controlled Poland after the 1939 Nazi invasion that triggered World War II, and his authority was extended to Lviv in 1941, when the Nazis dislodged the Soviet Union from the city.  As German governor, Frank oversaw the decimation of thriving Jewish communities across Poland, including that of Lviv, and crafted the policies that destroyed the three men’s families.

            With the defeat of Nazi Germany in 1945, Lauterpacht, Lemkin and Frank and the legal theories they espoused met head on at the International Military Tribunal in Nuremberg.  Frank was one of 24 high level Nazi officials placed on trial for his role in atrocities committed by the Nazi regime. Behind the scenes, Lemkin and Lauterpact competed to define the terms of the prosecution and judgment, with each lobbying to have the tribunal’s judges and prosecutors adopt his legal principle as a basis for prosecution – genocide for Lemkin, crimes against humanity for Lauterpacht — and reject that of the other. But one point was clear from the outset of the proceedings: Frank’s expansive notion of state sovereignty was categorically rejected — states were no longer free to treat their people entirely as they wished; state sovereignty no longer constituted an absolute bar to prosecution for acts of atrocity.

         But Sands starts and finishes with his family portrait, the story of his grandfather Leon, his wife Rita and their young daughter Ruth, Sands’ mother, uncovering details of their lives in those turbulent times which they chose not to reveal to the future human rights lawyer as he grew up in Great Britain.  Throughout, Sands himself is very much part of his story, which jumps between past and present as he explains how he pieced together his narrative’s disparate threads.  Among his sources are several still living individuals related to the central characters in the story, including the sons of Lauterpacht and Frank.  Sands thus packs a lot into just less than 400 pages.

* * *

           Sands explains at the outset that his motivation for writing this book stems from mysteries surrounding the life of his grandfather Leon, a man he clearly loved yet found he hardly knew. For the most part, Sands writes, Leon “locked the first half of his life into a crypt” (p.xxv).  Sands came to know Leon in the 1960s when, as a young boy, he visited the Paris apartment where Leon and his wife Rita lived.  Intuitively, the young Sands, born in 1960, came to realize that Leon and Rita’s time before Paris was not to be talked about.  It’s too complicated and not important, Leon told his grandson. But as he sought to uncover the circumstances that led his grandparents and mother from Vienna to Paris, he pieced together many additional details of their prior life.

            Leon was the youngest of four children. His older brother was killed in World War I just after its outbreak, in September 1914, and his grieving father died shortly thereafter.  Leon had two sisters, Gusta and Laura.  Gusta married in 1913 and moved to Vienna. Leon’s mother Malke took Leon and Laura to Vienna to be with Gusta, where young Leon attended primary and secondary school.  A few years later, Leon and Laura returned with their mother to Lviv.  Leon left the city definitively at age 19, in 1923, after it had become part of Poland, to make his way in Vienna. Gusta, Laura, and Malke all subsequently died in the Holocaust, along with Laura’s daughter.

         In Vienna, Leon worked for a while at the liquor store of his brother-in-law, then set up his own distillery.  He met his future wife, Rita Landes, in Vienna, and they married there in 1937. Their daughter Ruth, Sands’ mother, was born one year later, just prior to the German Anchluss with Austria in 1938.  Growing up, Sands had assumed that his mother’s family had all left Vienna at the same time, but he learned that this was far from the case. Leon was expelled from Vienna in late 1938, in the aftermath of the spasm of anti-Jewish violence known as Kristallnacht, and arrived alone in Paris in January 1939.  Rita stayed behind, ostensibly to care for her ailing mother. She did not leave Austria until November 9, 1941. The very next day “‘the borders of the German Reich were closed for refugees,’ all emigration ended, all departure routes were blocked. Rita got out at the last minute. Her escape was either very fortunate or based on assistance from someone with inside information” (p.39).

          The details of Rita’s departure eluded Sands, but an even greater mystery bedeviled him. The passport of his mother Ruth indicated that she arrived in Paris in July 1939, near her first birthday. How did the one year old get to Paris in July 1939 if Leon had been there since January of that year and Rita stayed in Vienna until 1941? The evidence pointed to a Miss Elsie Tilney, the most remarkable of the many supporting characters in this story. Sands learned that Miss Tilney was an heroic Christian missionary who spent the dark Nazi era escorting Jews, particularly Jewish children, to safer locations, and that Ruth had traveled to Paris with Ms. Tilney.   He further learned that the 11-year old daughter of Leon’s sister Laura was to have traveled to Paris with Miss Tilney and Ruth, but that Laura changed her mind at last minute, because she couldn’t face the separation. Neither mother nor daughter survived the war.

           In the process of uncovering these details about the departures from Vienna, Sands also stumbled across evidence he had not be looking for, suggesting a substantial rift between his grandparents: his grandmother may have had an affair with another man, which may or may not have been part of the reason Leon traveled alone to Paris in 1939.  Sands further came across suggestions that his grandfather too may have been attracted to another man.  Sands’ narrative assumes a spell-binding quality as he weighs the limited evidence available and comes closer to a fuller picture of how his grandparents and their daughter escaped Vienna and survived the war, while most of the rest of the family perished.

          Into this close-to-home family history, Sands adds not just the legal theories but also much personal detail about the lives of legal scholars Lemkin and Lauterpacht.  Like Buchholz, Lauterpacht found his way to Vienna as a young man, in 1919.  After beginning the study of law at the university in Lviv, Lauterpacht continued his legal studies in Vienna, where he reflected upon how the upheavals of the post-World War I era might be avoided in the future.  When a wave of anti-Semitism swept Vienna in 1923, he emigrated to Britain, where he first studied, then taught at the London School of Economics, followed by an appointment to Cambridge University in 1937.

          Lemkin studied law and linguistics at the same university in Lviv a few years after Lauterpacht, where he had the same criminal law instructor who had previously taught Lauterpacht.  Lemkin became a public prosecutor in Warsaw, while publishing extensively on international criminal law. He escaped from Poland after the Germans invaded the country in 1939, ending a circuitous journey at Duke University in North Carolina, where he taught law for many years.

             Against the backdrop of the two men’s personal lives, Sands zeroes in on the evolution of the legal thinking that began to take form for both in Lviv and blossomed in academic settings in the United Kingdom and the United States.  Lemkin and Lauterpacht shared an optimistic belief in the “power of law to do good and protect people,” and the “need to change the law to achieve that objective,” Sands writes. “Both agreed on the value of a single human life and on the importance of being part of the community” (p.385). But their solutions pointed in opposite directions.

            Lemkin “imagined new rules to protect ‘the life of the peoples’: to prevent ‘barbarity’, the destruction of groups, and to prevent ‘vandalism,’ attacks on culture and heritage” (p.157). Although not opposed to individual rights, Lemkin believed that an “excessive focus on individuals was naïve, that it ignored the reality of conflict and violence: individuals were targeted because they were members of a particular group, not because of their individual qualities” (p. 291).  Lemkin advanced his notion of genocide in a 1944 book, Axis Rule in Occupied Europe, which Lauterpacht reviewed in the Cambridge Law Journal in a “detached and lukewarm” (p.107) tone.

           To Lauterpacht, Lemkin’s notion of genocide and its emphasis upon group membership seemed likely to “reinforce latent instincts of tribalism, perhaps enhancing the sense of ‘us’ and ‘them,’ pitting one group against another” (p.281). Lauterpacht sought to diminish the force of inter-group conflict. The emerging international legal order needed to protect each individual, “irrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it” (p.291).

         In the contest between competing legal theories at Nuremberg, Lauterpacht was the immediate winner. His ideas on crimes against humanity and the rights of the individual were “firmly entrenched in the proceedings, coloring the entire case” (p.353). The term “genocide” was by contrast barely mentioned.  Both men attended substantial portions of the proceedings, which took place between November 1945 and October 1946, during which both learned that their parents and several family members had not survived the war.  In this time frame, Leon Buchholz also most likely learned that his family members left behind in Lviv had met the same fate.

         Lauterpacht exchanged ideas on how to frame the Nuremberg indictment with American chief prosecutor Robert Jackson. But as the proceedings progressed, he exerted an even more direct influence upon British prosecutor Sir Hartley Shawcross. In his opening argument on December 4, 1945, Shawcross adopted wording Lauterpacht had proposed, “arguing forcefully that the tribunal should sweep aside the tradition that sovereigns could act as they wished, free to kill, main and torture their own people” (p.292).  The core of Shawcross’ argument came straight from Lauterpact: “The state is not an abstract entity. . . Its rights and duties are the rights and duties of men.” Shawcross thus put a radical spin on the idea of individual responsibility by “placing ‘fundamental human rights’ and ‘fundamental human duties’ at the heart of a new international system” (p.292-93).

       The prosecution’s case against Hans Frank at Nuremberg brought German actions in Lviv and Poland to center stage in the proceedings. In drafts that Lauterpacht had provided to Shawcross, Frank was the only defendant Lautherpacht mentioned, and he did so repeatedly — no coincidence, Sands writes, given that Frank was the “man in the dock most closely connected to the murder of his own family” (p.339).  While governor of Poland, Frank had kept a detailed and highly incriminating diary of his daily activities, which had fallen into allied hands as the war ended, giving him little room to maneuver.

         As Frank initially faced the tribunal in March 1946, Sands speculates that his lawyer had no sense what his client might say. When the lawyer asked Frank at the outset whether he had participated in the annihilation of Jews in Poland, the former governor astounded the Nuremberg court and his fellow defendants by responding, “yes,” adding that his conscience did not permit him to throw responsibility for the slaughters upon what he termed “minor people.”  One thousand years will pass, Frank told the court, “and still this guilt of Germany will not have been erased” (p.310).  But Frank’s lawyer appeared to walk back this confession in his closing argument the following July.

       His client’s diaries were the thoughts of the secretaries who transcribed them, Frank’s lawyer contended.  His client had never killed anyone, and he had tried to mitigate some of the most atrocious excesses of the regime. Most likely, the other defendants and their lawyers had in the time since March impressed upon Frank and his lawyer the need for solidarity among the defendants, and convinced them to reverse course. The arguments proved to be of no avail.  Frank was condemned to death by hanging and became the fifth Nazi official to go to the gallows.

        The judgments at Nuremberg “came as a relief to Lauterpacht.” His arguments on crimes against humanity, endorsed by the tribunal, were “now part of international law.  The protection for the individual, and the idea of individual criminal responsibility for the worst crimes, would be part of the new legal order. The sovereignty of the state would no longer provide absolute refuge for crimes on such a scale, in theory at least” (p.372).   But if he felt any satisfaction with the judgment, he never mentioned it to anyone.  Lemkin by contrast was devastated by absence of any mention of genocide in the court’s final judgments. This “Nuremberg nightmare” (p.372) was the worst day of his life, he told an American junior prosecutor, worse even than the day a month earlier when he learned that both his parents had perished in the Holocaust.

          But genocide gained traction as a recognized concept in international law in December 1946, when the United Nations General Assembly adopted a resolution that affirmed that genocide, which denied the “right of existence of entire human groups,” was a crime under international law.  Where the judges at Nuremberg had feared to tread, Sands notes, governments working through the United Nations “legislated into existence a rule to reflect Lemkin’s work” (p.377).  Two years later, in December 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, the first human rights treaty of the modern era.  One day later, the General Assembly also adopted the Universal Declaration of Human Rights, for which Lauterpacht was a primary inspiration.

        Much of the vibrancy of Sand’s story comes from his resourcefulness in finding living persons to supplement the meager record of writings and photographs with oral recollections of the story’s central characters, especially the sons of Lauterpacht and Frank, Eli and Niklas.  Eli (officially Sir Elihu), born in London in 1928, followed in his father’s footsteps as an academic and lawyer specializing in international law, founding Cambridge’s Lauterpacht Centre for International Law.  Sands first met Eli when he took Eli’s course in international law at Cambridge in the 1980s.  But it was not until several decades later that Sands learned of the Lviv connection between Eli’s father and Leon Buchholz.  Eli told Sands that as he grew up in Britain his father, like Leon, never talked about life in Poland (Eli died in 2017, after Sands’ book went to press).

           Niklas Frank, born in 1939, became a distinguished journalist as a foreign correspondent for Stern Magazine.  The younger Frank came to Sands’ attention for a book he had written in the 1980s called Der Vater (The Father), an “unforgiving, merciless attack on his father, a work that broke a taboo that directed the children of senior Nazis to honor their parents” (p.224).  On one occasion, Niklas told Sands, “My father loved the Führer more than he loved his family” (p.235).  Sands and Niklas visited the Nuremberg tribunal together in 2014.  “My father was a lawyer; he knew what he did” (p.xxiii), Frank told Sands at the time.

* * *

         The major threads of Sands’ book – his family’s exodus out of Vienna in the Nazi era; the clash of ideas between Lauterpacht and Lemkin for a new legal order that played out at Nuremberg; and the vicissitudes of Lviv – illuminate, each in its own way, the travails of Europe’s 20th century and their on-going consequences.  Each would surely merit treatment in a separate work.  Readers contemplating investing time in Sands’ book may ask themselves whether these disparate threads can be wrapped together coherently into an absorbing narrative.  My answer upon concluding this epic work was that Sands has accomplished precisely that.

Thomas H. Peebles

La Châtaigneraie, France

May 20, 2018

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Filed under Eastern Europe, European History, Gender Issues, History, Intellectual History, Rule of Law, Uncategorized

Do Something

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Zachary Kaufman, United States Law and Policy on Transitional Justice:

Principles, Politics, and Pragmatics 

             The term “transitional justice” is applied most frequently to “post conflict” situations, where a nation state or region is emerging from some type of war or violent conflict that has given rise to genocide, war crimes, or crimes against humanity — each now a recognized concept under international law, with “mass atrocities” being a common shorthand used to embrace these and related concepts. In United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics, Zachary Kaufman, a Senior Fellow and expert on human rights at Harvard University’s Kennedy School of Government, explores the circumstances which have led the United States to support that portion of the transitional justice process that determines how to deal with suspected perpetrators of mass atrocities, and why it chooses a particular means of support (disclosure: Kaufman and I worked together in the US Department of Justice’s overseas assistance unit between 2000 and 2002, although we had different portfolios: Kaufman’s involved Africa and the Middle East, while I handled Central and Eastern Europe).

          Kaufman’s book, adapted from his Oxford University PhD dissertation, centers around case studies of the United States’ role in four major transitional justice situations: Germany and Japan after World War II, and ex-Yugoslavia and Rwanda in the 1990s, after the end of the Cold War. It also looks more briefly at two secondary cases, the 1988 bombing of Pan American flight 103, attributed to Libyan nationals, and atrocities committed during Iraq’s 1990-91 occupation of Kuwait. Making extensive use of internal US government documents, many of which have been declassified, Kaufman digs deeply into the thought processes that informed the United States’ decisions on transnational justice in these six post-conflict situations. Kaufman brings a social science perspective to his work, attempting to tease of out of the case studies general rules about how the United States might act in future transitional justice situations.

          The term “transitional justice” implicitly affirms that a permanent and independent national justice system can and should be created or restored in the post-conflict state.  Kaufman notes at one point that dealing with suspected perpetrators of mass atrocities is just one of several critical tasks involved in creating or restoring a permanent national justice system in a post-conflict state.  Others can include: building or rebuilding sustainable judicial institutions, strengthening the post-conflict state’s legislation, improving capacity of its justice-sector personnel, and creating or upgrading the physical infrastructure needed for a functioning justice system. These latter tasks are not the focus of Kaufman’s work. Moreover, in determining how to deal with alleged perpetrators of mass atrocities, Kaufman’s focus is on the front end of the process: how and why the United States determined to support this portion of the process generally and why it chose particular mechanisms rather than others.   The outcomes that the mechanisms produce, although mentioned briefly, are not his focus either.

          In each of the four primary cases, the United States joined other nations to prosecuted those accused or suspected of involvement in mass atrocities before an international criminal tribunal, which Kaufman characterizes as the “most significant type of transitional justice institution” (p.12). Prosecution before an international tribunal, he notes, can promote stability, the rule of law and accountability, and can serve as a deterrent to future atrocities. But the process can be both slow and expensive, with significant political and legal risks. Kaufman’s work provides a useful reminder that prosecution by an international tribunal is far from the only option available to deal with alleged perpetrators of mass atrocities. Others include trials in other jurisdictions, including those of the post-conflict state, and several non-judicial alternatives: amnesty for those suspected of committing mass atrocities, with or without conditions; “lustration,” where suspected persons are disenfranchised from specific aspects of civic life (e.g., declared ineligible for the civil service or the military); and “doing nothing,” which Kaufman considers tantamount to unconditional amnesty.  Finally, there is the option of summary execution or other punishment, without benefit of trial. These options can be applied in combination, e.g., amnesty for some, trial for others.

         Kaufman weighs two models, “legalism” and “prudentialism,” as potential explanations for why and how the United States acted in the cases under study and is likely to act in the future.  Legalism contends that prosecution before an international tribunal of individuals suspected or accused of mass atrocities  is the only option a liberal democratic state may elect, consistent with its adherence to the rule of law.  In limited cases, amnesty or lustrations may be justified as a supplement to initiating cases before a tribunal. Summary execution may never be justified. Prudentialism is more ad hoc and flexible,with  the question whether to establish or invoke an international criminal tribunal or pursue other options determined by any number of different political, pragmatic and normative considerations, including such geo-political factors as promotion of stability in the post-conflict state and region, the determining state or states’ own national security interests, and the relationships between determining states. Almost by definition, legalism precludes consideration of these factors.

          Kaufman presents his cases in a highly systematic manner, with tight overall organization. An introduction and three initial chapters set forth the conceptual framework for the subsequent case studies, addressing matters like methodology and definitional parameters.  The four major cases are then treated in four separate chapters, each with its own introduction and conclusion, followed by an overall conclusion, also with its own introduction and conclusion (the two secondary cases, Libya and Iraq are treated within the chapter on ex-Yugoslavia).  Substantive headings throughout each chapter make his arguments easy to follow.   General readers may find jarring his extensive use of acronyms throughout the text, drawn from a three-page list contained at the outset. But amidst Kaufman’s deeply analytical exploration of the thinking that lay behind the United States’ actions, readers will appreciate his decidedly non-sociological hypothesis as to why the United States elects to engage in  the transitional justice process: a deeply felt American need in the wake of mass atrocities to “do something” (always in quotation marks).

* * *

          Kaufman begins his case studies with the best-known example of transitional justice, Nazi Germany after World War II. The United States supported creation of what has come to be known as the Nuremberg War Crimes tribunal, a military court administered by the four victorious allies, the United States, Soviet Union, Great Britain and France. The Nuremberg story is so well known, thanks in part to “Judgment at Nuremberg,” the best-selling book and popular film, that most readers will assume that the multi-lateral Nuremberg trials were the only option seriously under consideration at the time. To the contrary, Kaufman demonstrates that such trials were far from the only option on the table.

        For a while the United States seriously considered summary executions of accused Nazi leaders. British Prime Minister Winston Churchill pushed this option during wartime deliberations and, Kaufman indicates, President Roosevelt seemed at times on the cusp of agreeing to it. Equally surprisingly, Soviet Union leader Joseph Stalin lobbied early and hard for a trial process rather than summary executions. The Nuremberg Tribunal “might not have been created without Stalin’s early, constant, and forceful lobbying” (p.89), Kaufman contends.  Roosevelt abandoned his preference for summary executions after economic aspects of the Morgenthau Plan, which involved the “pastoralization” of Germany, were leaked to the press. When the American public “expressed its outrage at treating Germany so harshly through a form of economic sanctions,” Roosevelt concluded that Americans would be “unsupportive of severe treatment for the Germans through summary execution” (p.85).

          But the United States’ support for war crimes trials became unwavering only after Roosevelt died in April 1945 and Harry S. Truman assumed the presidency.  The details and mechanics of a multi-lateral trial process were not worked out until early August 1945 in the “London Agreement,” after Churchill had been voted out of office and Labor Prime Minister Clement Atlee represented Britain. Trials against 22 high level Nazi officials began in November 1945, with verdicts rendered in October 1946: twelve defendants were sentenced to death, seven drew prison sentences, and three were acquitted.

       Many lower level Nazi officials were tried in unilateral prosecutions by one of the allied powers.   Lustration, barring active Nazi party members from major public and private positions, was applied in the US, British, and Soviet sectors.  Numerous high level Nazi officials were allowed to emigrate to the United States to assist in Cold War endeavors, which Kaufman characterizes as a “conditional amnesty” (Nazi war criminals who emigrated to the United States is the subject of Eric Lichtblau’s The Nazis Next Door: How America Became a Safe Haven for Hitler’s Men, reviewed here in October 2015; Frederick Taylor’s Exorcising Hitler: The Occupation and Denazification of Germany, reviewed here in December 2012, addresses more generally the manner in which the Allies dealt with lower level Nazi officials). By 1949, the Cold War between the Soviet Union and the West undermined the allies’ appetite for prosecution, with the Korean War completing the process of diverting the world’s attention away from Nazi war criminals.

          The story behind creation of the International Military Tribunal for the Far East, designed to hold accountable accused Japanese perpetrators of mass atrocities, is far less known than that of Nuremberg, Kaufman observes.  What has come to be known as the “Tokyo Tribunal” largely followed the Nuremberg model, with some modifications. Even though 11 allies were involved, the United States was closer to the sole decision-maker on the options to pursue in Japan than it had been in Germany. As the lead occupier of post-war Japan, the United States had “no choice but to ‘do something’” (p.119).   Only the United States had both the means and will to oversee the post-conflict occupation and administration of Japan. That oversight authority was vested largely in a single individual, General Douglas MacArthur, Supreme Commander of the Allied forces, whose extraordinarily broad – nearly dictatorial — authority in post World War II Japan extended to the transitional justice process. MacArthur approved appointments to the tribunal, signed off on its indictments, and exercised review authority over its decisions.

            In the interest of securing the stability of post-war Japan, the United States accorded unconditional amnesty to Japan’s Emperor Hirohito. The Tokyo Tribunal indicted twenty-eight high-level Japanese officials, but more than fifty were not indicted, and thus also benefited from an unconditional amnesty. This included many suspected of “direct involvement in some of the most horrific crimes of WWII” (p.108), several of whom eventually returned to Japanese politics. Through lustration, more than 200,000 Japanese were removed or barred from public office, either permanently or temporarily.  As in Germany, by the late 1940s the emerging Cold War with the Soviet Union had chilled the United States’ enthusiasm for prosecuting Japanese suspected of war crimes.

           The next major United States engagements in transitional justice arose in the 1990s, when the former Yugoslavia collapsed and the country lapsed into a spasm of ethnic violence; and massive ethnic-based genocide erupted in Rwanda in 1994. By this time, the Soviet Union had itself collapsed and the Cold War was over. In both instances, heavy United States’ involvement in the post-conflict process was attributed in part to a sense of remorse for its lack of involvement in the conflicts themselves and its failure to halt the ethnic violence, resulting in a need to “do something.”  Rwanda marks the only instance among the four primary cases where mass atrocities arose out of an internal conflict.

       The ethnic conflicts in Yugoslavia led to the creation of the International Criminal Tribunal for Yugoslavia (ICTY), based in The Hague and administered under the auspices of the United Nations Security Council. Kaufman provides much useful insight into the thinking behind the United States’ support for the creation of the court and the decision to base it in The Hague as an authorized Security Council institution. His documentation shows that United States officials consistently invoked the Nuremberg experience. The United States supported a multi-lateral tribunal through the Security Council because the council could “obligate all states to honor its mandates, which would be critical to the tribunal’s success” (p.157). The United States saw the ICTY as critical in laying a foundation for regional peace and facilitating reconciliation among competing factions. But it also supported the ICTY and took a lead role in its design to “prevent it from becoming a permanent [tribunal] with global reach” (p.158), which it deemed “potentially problematic” (p.157).

             The United States’ willingness to involve itself in the post-conflict transitional process in Rwanda,   even more than in the ex-Yugoslavia, may be attributed to its failure to intervene during the worst moments of the genocide itself.  That the United States “did not send troops or other assistance to Rwanda perversely may have increased the likelihood of involvement in the immediate aftermath,” Kaufman writes. A “desire to compensate for its foreign policy failures in Rwanda, if not also feelings of guilt over not intervening, apparently motivated at least some [US] officials to support a transitional justice institution for Rwanda” (p.197).

        Once the Rwandan civil war subsided, there was a strong consensus within the international community that some kind of international tribunal was needed to impose accountability upon the most egregious génocidaires; that any such tribunal should operate under the auspices of the United Nations Security Council; that the tribunal should in some sense be modeled after the ICTY; and that the United States shouldtake the lead in establishing the tribunal. The ICTY precedent prompted US officials to “consider carefully the consistency with which they applied transitional justice solutions in different regions; they wanted the international community to view [the US] as treating Africans similarly to Europeans” (p.182). According to these officials, after the precedent of proactive United States involvement in the “arguably less egregious Balkans crisis,” the United States would have found it “politically difficult to justify inaction in post-genocide Rwanda” (p.182).

           The United States favored a tribunal modeled after and structurally similar to the ICTY, which came to be known as International Criminal Tribunal for Rwanda (ICTR). The ICTR was the first international court having competence to “prosecute and punish individuals for egregious crimes committed during an internal conflict” (p.174), a watershed development in international law and transitional justice.  To deal with lower level génocidaires, the Rwandan government and the international community later instituted additional prosecutorial measures, including prosecutions by Rwandan domestic courts and local domestic councils, termed gacaca.

          No international tribunals were created in the two secondary cases, Libya after the 1998 Pan Am flight 103 bombing, and the 1990-91 Iraqi invasion of Kuwait. At the time of the Pam Am bombing, several years prior to the September 11, 2001 attacks, United States officials considered terrorism a matter to be addressed “exclusively in domestic contexts” (p.156).  In the case of the bombing of Pan Am 103, where Americans had been killed, competent courts were available in the United States and the United Kingdom. There were numerous documented cases of Iraqi atrocities against Kuwaiti civilians committed during Iraq’s 1990-91 invasion of Kuwait.  But the 1991 Gulf War, while driving Iraq out of Kuwait, otherwise left Iraqi leader Saddam Hussein in power. The United States was therefore not in a position to impose accountability upon Iraqis for atrocities committed in Kuwait, as it had done after defeating Germany and Japan in World War II.

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         In evaluating the prudentialism and legalism models as ways to explain the United States’ actions in the four primary cases, prudentialism emerges as a clear winner.  Kaufman convincingly demonstrates that the United States in each was open to multiple options and motivated by geo-political and other non-legal considerations.  Indeed, it is difficult to imagine that the United States – or any other state for that matter — would ever, in advance, agree to disregard such considerations, as the legalism model seems to demand. After reflecting upon Kaufman’s analysis, I concluded that legalism might best be understood as more aspirational than empirical, a forward-looking, prescriptive model as to how the United States should act in future transitional justice situations, favored in particular by human rights organizations.

         But Kaufman also shows that the United States’ approach in each of the four cases was not entirely an ad hoc weighing of geo-political and related considerations.  Critical to his analysis are the threads which link the four cases, what he terms “path dependency,” whereby the Nuremberg trial process for Nazi war criminals served as a powerful influence upon the process set up for their Japanese counterparts; the combined Nuremberg-Tokyo experience weighed heavily in the creation of ICTY; and ICTY strongly influenced the structure and procedure of ICTR.   This cumulative experience constitutes another factor in explaining why the United States in the end opted for international criminal tribunals in each of the four cases.

         If a general rule can be extracted from Kaufman’s four primary cases, it might therefore be that an international criminal tribunal has evolved into the “default option” for the United States in transitional justice situations,  showing the strong pull of the only option which the legalism model considers consistent with the rule of law.  But these precedents may exert less hold on US policy makers going forward, as an incoming administration reconsiders the United States’ role in the 21st century global order. Or, to use Kaufman’s apt phrase, there may be less need felt for the United States to “do something” in the wake of future mass atrocities.

Thomas H. Peebles

Venice, Italy

February 10, 2017

 

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