Testing Britain’s Commitment to Decolonization and the Rule of Law

 

 

Philippe Sands, The Last Colony:

A Tale of Exile, Justice and Britain’s Colonial Legacy (Weidenfeld & Nichols, 2022)

For many across the globe, the 1960s were above all the decade of decolonization.  In 1960, the United Nations for the first time directly addressed the legality of colonization under international law when the General Assembly approved Resolution 1514, “Declaration on the Granting of Independence to Colonial Countries and Peoples.” The resolution characterized foreign rule as a violation of human rights, affirmed the right to self-determination, and called for an end to colonial regimes. The decade saw over 30 colonies, mostly in Africa and Asia, gain their independence from Great Britain, France and other European powers. But the Cold War confrontation between the Soviet Union and the United States was also a global fact of life throughout the 1960s, reaching the brink of nuclear war in the October 1962 Cuban Missile Crisis.

Decolonization and the realities of the Cold War converged in 1968 when the Indian Ocean Island nation of Mauritius gained its independence from Britain. In granting independence, Britain split off an area known as the Chagos Archipelago, located about 2000 kilometers north of Mauritius’ capital city, Port Louis, from the rest of the newly independent nation to form a new colonial entity, the British Indian Ocean Territory (BIOT).  Two years earlier, in 1966, Britain and the United States had secretly concluded an agreement to locate an American naval base on the Chagos Archipelago’s largest island, Diego Garcia, to support US military operations across the Indian ocean.

Part of the agreement for the Diego Garcia base involved the “resettlement” – forcible deportation – of the entire local population of the Chagos Archipelago from what was in most cases the only homeland its residents had ever known.  The deportations took place between 1968 and 1973.  Although Britain came under criticism immediately for the deportations, it was not until a half century later, in 2019, that an international tribunal squarely determined that Britain’s detachment of the Chagos archipelago had been contrary to international law under UNGA 1514 and that Britain could not legitimately claim sovereignty over the archipelago.

That tribunal was the International Court of Justice (ICJ), the United Nations’ principal judicial organ, located at The Hague in the Netherlands. In addition to resolving contentious issues between member states, the ICJ is also empowered to give advisory opinions on “any legal question” requested either by the UN’s General Assembly or its Security Council.  A UNGA advisory opinion was the route that Mauritius pursued in the Chagos case.

Mauritius was represented before the ICJ by Philippe Sands, a London-based international human rights lawyer who has also litigated high-profile cases involving Chile, Congo, Rwanda, and the ex-Yugoslavia, to name just a few, as well as writing prolifically on and teaching international law. In his most recent work, The Last Colony: A Tale of Exile, Justice and Britain’s Colonial Legacy, Sands walks his readers through the Chagos case, allowing us to see the strategies, thinking, and legal maneuvering required to get the case to The Hague and present it effectively before the ICJ. He uses the litigation as a springboard to demonstrate how the international justice system operates at the ground level in a case that in his view goes to “the heart of any system of justice, how the rule of law protects the weak and vulnerable from the excesses of the powerful” (p.130).

The major issues at The Hague, involving the applicability and scope of UNGA Resolution 1514 and conflicting claims of sovereignty, may sound abstract and coldly legal.  But they are significantly less so in Sands’ account because he explains them through the eyes of Madame Lisby Elysé, whom he describes as his book’s “beating heart” (p.x).  Like most in her community of 1,500, located on an island within the Chagos archipelago, Madame Elysé is Black, a descendant of enslaved plantation workers. She dropped out of school early to assist her family and can neither read nor write.  In 1973, when she was 20, recently married and then pregnant, British authorities informed her with almost no advanced notice that she had to leave her island home.  She was allowed to bring one suitcase.  She and the other members of her community have never been allowed to return permanently, although they have been accorded the option of occasional subsidized returns, euphemistically termed “heritage visits.”

The path to The Hague for Madame Elysé and her fellow Chagnossians was long, with many preliminary stops.  Along the way, they brought numerous cases in courts in London challenging the legality of the detachment and subsequent forced deportations; took a trip to the European Court of Human Rights in Strasbourg; and engaged in an arbitration proceeding in Istanbul, all before convincing the UNGA to refer the case to the ICJ for an advisory opinion.  As Sands takes his readers along this path, he never loses sight of how the case affected Madame Elysé and her fellow islanders.

Tying together the diverse strands of Sands’ narrative yields a withering account of Great Britain’s relationship with its former colony.  A state policy of forced deportations as recently as the late 1960s and early 1970s now sees shocking.  But even more shocking in Sands’ account is the degree to which 21^st century Britain, backed by the United States, continues to this day to defend the deportations and assert sovereignty over the Chagos Archipelago, despite the ICJ decision and a subsequent, nearly unanimous, UNGA resolution which had the effect of affirming the court’s decision.

* * *

To understand the Chagos case’s long journey to The Hague, Sands provides a useful textbook overview of the basic principles and institutions of the post-war international legal order, connecting them to the era’s decolonization movement and to modern notions of human rights and self-determination.  The major documents and instruments creating that legal order, such as the initial UN Charter of 1945, the 1948 Universal Declaration of Human Rights, and the 1949 Geneva Convention, avoided directly addressing the future of colonial regimes, an indication of British and French influence on the drafting process.

UNGA Resolution 1514 redressed the evasions and omissions contained in the early post-war documents and instruments. Passage of the resolution in 1960 rendered colonial domination “illegitimate for the first time in modern international society,” Adom Getachew wrote in Worldmaking After Empire: The Rise and Fall of Self-Determination, reviewed here last year.  Under Resolution 1514, self-determination became a human right, with colonialism itself becoming an international crime. The resolution was adopted by an 89-0 vote, with 9 countries abstaining, including Britain and France.  The   United States was on the cusp of voting yes until President Eisenhower overruled his diplomats and ordered abstention, purportedly upon the personal request of British Prime Minister Harold Macmillan.  Britain’s official position on Resolution 1514 was that it accepted self-determination as a “principle” although not as a legal “right” (p.34).

But the internal deliberations over Mauritian decolonization which Sands has unearthed suggest that Britain had difficulties accepting self-determination even as a principle. In discussions leading up to independence, Sands indicates, Britain informed the surprised Mauritians that it intended to retain the Chagos archipelago but did not mention the plan for the naval base at Diego Garcia. Facing international condemnation when the detachment arrangement came to world attention, Britain’s Colonial Secretary warned that Britain needed to move quickly before the Mauritians and the world at large learned of the United States’ place in the arrangement, which might “lay ourselves open to an additional charge of dishonesty” (p.44).

To avoid an “additional charge of dishonesty,” the Foreign Office instructed its Ambassador in New York to tell the UN that the Chagos islands “have virtually no permanent inhabitants” (p.44), a “big lie” (p.47) in Sands’ words. But the British Ambassador to the UN was uncomfortable with the word “virtually,” fearing it might raise questions over what that qualification was meant to suggest and advised that it would be preferable to proceed on the basis that there were “no permanent inhabitants” (p.4) on the islands. The word “virtually” was excised, resulting in an even bigger lie.

When one of the Foreign Office’s legal advisors expressed reservations about this approach, which he considered fraudulent, another countered that there was nothing wrong in law or principle with the forced deportations because Britain could “make up the rules as we go along” (p.45).  The Foreign Office stressed that Britain needed to be “very tough” in managing the public relations fallout from Mauritius and that Chagos should become a place with “no indigenous population except seagulls” (p.47).   Several suits were filed in London in the 1970s and 1980s challenging the forced deportations from Chagos, none of which provided the primary relief Madame Elysé and her fellow Chagnossians sought: the right to return to their home islands.

* * *

The major breakthrough in the Chagnossians’ quest to reach The Hague occurred decades later, in 2010, when British Foreign Secretary David Miliband announced the creation of a vast “Marine Protected Area” around the Chagos archipelago.  The Marine Protected Area was intended to protect marine biodiversity, burnish Britain’s environmental credentials and, not incidentally, cast its policy toward the Chagnossians in a more favorable light.  Diego Garcia was excluded from the special area. Although the proposal was warmly received by environmental groups, no one in Mauritius was consulted about British plans for the area.

Sands’ direct involvement in the case began a few months after Miliband’s announcement, when he conferred with Mauritius’ then-Prime Minister Navi Ramgoolam, a member of the English bar, who wanted to find a way to challenge the lawfulness of the Marine Protected Area.  The two focused upon the novel idea of seeking relief through the United Nations Convention on the Law of the Sea (UNCLOS), which had been finalized in 1982 and ratified by more than 150 countries after more than 10 years of negotiations.

Although many of its terms addressed technical matters like fishing rights and the delimitation of sea boundaries, the UNCLOS also contained new rules on the protection of the marine environment and on the “common heritage of mankind,” giving all states rights to mineral resources under the seabed.  The treaty can thus be considered a “post-colonial instrument” that “sought to give effect to the principle of self-determination” (p.62), Sands writes. He and the Prime Minister settled upon attacking Britain’s new policy on several technical grounds, including that it violated Mauritius’ fishing rights around Chagos, coupled with a broader challenge that Britain was not Chagos’ “coastal state” under the UCLOS –  a direct challenge to the legitimacy of both the detachment of Chagos at the time of independence and Britain’s continued assertion of sovereignty over the archipelago.

The UNCLOS provided for arbitration of disputes, along with dispute resolution at the ICJ and at a new International Tribunal for the Law of the Sea.  For strategic reasons, the Prime Minister and Sands decided to pursue the arbitration route, with Mauritius launching proceedings in December 2010. A single document supported its application, a United States cable intercepted and published by Wikileaks, which quoted a British official telling the United States that we, Britain, “do not regret the removal of the population” (p.88-89), and suggesting that Britain intended to harness the Marine Protected Area to “extinguish forever the Chagnossians’ ability to return” (p.89), a positive side effect for a project that had already won the approval of environmentalists.

The arbitration panel’s decision, delivered in March 2015, produced a limited victory for Mauritius. The panel unanimously ruled in Mauritius’s favor on the technical issues it had raised. But it declined to rule on which of the two countries was the “coastal state” under the UNCLOS, the broader challenge to British sovereignty, or on the effect of UNGA Resolution 1514 on the case.  Two dissenting arbitrators, however, agreed with Mauritius’ position on both sets of issues. This partial victory led Mauritius to conclude that the time was ripe to petition the UNGA for a referral of the Chagnos case to the ICJ for an advisory opinion, which it did in June 2017.

The June 2016 Brexit referendum, when the United Kingdom voted to leave the European Union, provided Mauritius with an unexpected boost at the UNGA.  Sands notes how British ministers were “waxing lyrically about a new Empire 2.0” (p.101), enough by itself to scare many UNGA member states, less lyrical about British Empire 1.0.  But the “brutal reality” was that Britain “could no longer rely on the unqualified support of EU members and their networks across the UN”  (p.101).  Both within and beyond the EU, Britain’s authority had “suffered a major collapse” (p.102), Sands writes.  Britain fell far short in its effort to defeat the referral resolution, which passed the UNGA by a comfortable margin, with 94 member states voting in favor, 16 against, and 65 abstentions.

There were nine factual and legal points that Sands considered essential to the Chagos case at the ICJ, and he explains how these had to be tailored to appeal to judges from a wide variety of legal systems and cultures. But he and his legal team also wrestled with how to present the human side of the case to the judges. They opted for a video statement from Madame Elysé.  In an intense address of less than 4 minutes, delivered in her native Créole and translated into English and French, she conveyed the circumstances surrounding her forcible uprooting from her home in 1973 with “clarity, force and passion” (p.4), revealing that she had lost her baby during the passage out of her native island.  She finished by telling the court that as she reached her last years, she had one overwhelming desire:  to return home, to the island where she was born.

The United Kingdom’s legal representative urged the court to dismiss the case as a “bi-lateral sovereignty dispute” outside the court’s authority, although he provided assurances that Britain supported the court and the international rule of law. He expressed “deep respects” to the Chagnossians, conceding that the manner – although not the fact – of their removal had been “shameful and wrong” (p.126-27).    He expressed no commitment to allow the Chagnossians to return. That Britain had paid compensation over the years was “amends enough” (p.127).

In its decision, announced in early 2019, the ICJ rejected Britain’s argument that the case was simply a bilateral territorial dispute. The court found that the Chagnossians had been “forcibly removed” and “prevented from returning” (p.132), actions contrary to UNGA Resolution 1514.  Rather than creating a new rule, 1514 had declared an existing rule of customary law, “one that no state voted against” (p.132).  Because the detachment of Chagos had not been based on the “free and genuine expression of the will of the people concerned” (p.133), it followed that Britain’s continued assertion of sovereignty over the archipelago was a “wrongful act” which should end “as rapidly as possible” (p.133). The resettlement of Mauritian nationals, the ICJ concluded, involved issues “relating to the protection of human rights” (p.133), but those were for the UNGA to address.

A few months later, the UNGA adopted a near unanimous resolution (116 nation-states in favor, 55 abstentions, and 5 no votes) which amounted to an affirmation of the ICJ decision, stating that the Chagos archipelago “forms an integral part of the territory of Mauritius” and demanding that Britain “withdraw its colonial administration … unconditionally within a period of no more than six months.”    To date, that withdrawal has not happened. Rather, Britain continues to cling to the notion that it retains sovereignty over the Chagos Archipelago and has not recognized Madame Elysé’s right to reinhabit the island of her birth.

Although Mauritius’ Prime Minister Pravind Jugnauth and British Prime Minister Theresa May met in the aftermath of the ICJ decision and UNGA resolutions, those meetings ended with May’s defiant written response that sovereignty over the Chagos archipelago “will be ceded when the British Indian Ocean Territory is no longer needed for defense purposes” (p.136), flatly rejecting return of the Chagnossians. The stream of diplomatic notes, press statements and answers to parliamentary questions on Mauritius, Sands indicates, almost invariably begin with the same words:

The United Kingdom has no doubt about its sovereignty over the Chagos Archipelago, which has been under continuous British sovereignty since 1814.  Mauritius has never held sovereignty over the Archipelago and we do not recognize its claim  (p.146).

This absence of doubt is particularly striking, Sands writes, “since the British have never been unable able to persuade any international judge – not even one – to express support for its claim to the archipelago. This raises serious questions about the country’s purported commitment to the rule of law. Two Prime Ministers and five Foreign Secretaries have embraced lawlessness, for reasons that are unclear, hoping to tough it out and make the problem go away”  (p.146).

* * *

Sands’ work also raises  questions about Britain’s commitment to the rule of law. It is a piece of advocacy, in which Britain’s consistently hardline positions seem almost cartoonish, leaving the reader wondering whether there may be more substance to those positions than what Sands presents here.  But if Sands is writing more as a lawyer than a journalist or historian, this searing work nonetheless represents a clear victory in the court of public opinion for Madame Elysé and her fellow Chagnossians – and for international justice.

Thomas H. Peebles

Bogotá, Colombia

June 1, 2023

 

 

 

 

 

 

 

 

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 20^th 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 20^th 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