Why International Law Still Matters

Justice Delayed

Two years ago, when Syria’s death toll stood at 250,000, the United Nations, no longer able to verify the data, stopped counting the dead. Today, the death toll has likely reached half a million. In Aleppo, government forces shell homes and markets. On September 19, Russian or Syrian airplanes bombed a UN humanitarian aid convoy carrying food, medicine, and supplies to the besieged city, where more than a third of all casualties are children.

In Syria and across the region, international law seems all but irrelevant. Genocide and crimes against humanity routinely go unpunished. In Syria, the regime of President Bashar al-Assad has resorted to chemical weapons, torture, and starvation as a tool of war. In Iraq, fighters from the Islamic State (also known as ISIS) have rounded up and executed thousands of Yazidis. And in Yemen, Saudi Arabian jets have reportedly attacked hospitals.

International law often gets a bad rap; it is difficult to enforce and relies on dense and technical language. Yet the world would be far worse off without it. Without the International Criminal Tribunal for the Former Yugoslavia, Serbian President Slobodan Milošević would never have faced charges of genocide and crimes against humanity. Without a tribunal established by the United Nations and Sierra Leone, former Liberian president Charles Taylor would never have been apprehended in 2006, nor convicted six years later of crimes against humanity. And without a similar tribunal in Cambodia, established in 2003, Kang Kek Iew, Nuon Chea, and Khieu Samphan, three leaders of the Khmer Rouge, may never have faced justice.

It is impossible to know how many lives international criminal law has saved. Yet these rules still remain exceptional features of an international system in which states fiercely guard their sovereign prerogatives, including the right to use force in self-defense without authorization from the UN Security Council. Because international prohibitions that have real impact remain unusual, it is worth investigating the origins of the ones on genocide and crimes against humanity. In East-West Street, Philippe Sands provides exactly that.

A professor of international law at University College, London, Sands tells the stories of three lawyers, all born at the dawn of the twentieth century, whose lives came together four decades later in what is now the city of Lviv, Ukraine—and was previously Lwów, Poland, and before that Lemberg, in the Austro-Hungarian Empire.

Prosecutor Ralph Gerhart Albrecht addressing the court, Nuremberg Trials, Germany, 1945.

WIKIMEDIA Prosecutor Ralph Gerhart Albrecht addressing the court, Nuremberg Trials, Germany, 1945.

Hersch Lauterpacht was born in a village near Lemberg in 1897 and studied in the university there. His considerable abilities carried him to Vienna, London, Cambridge, and, ultimately, the International Court of Justice in The Hague. Lauterpacht was the intellectual father of international human rights and a key figure at the Nuremberg Tribunal, where he advised both the British and the U.S. delegations. He invented the concept of crimes against humanity, defined as “murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations.”

Rafael Lemkin also attended the University of Lemberg, where he studied under the same professors as Lauterpacht. He became a public prosecutor, before escaping to Sweden in 1940, taking with him a sizeable collection of Nazi decrees and ordinances. From his new home at Duke University in North Carolina, Lemkin used the documents to prove the existence of a plan to systematically eliminate the Jewish people—a plan for which he coined the term “genocide” to refer to acts committed with an intent to destroy a national, ethnic, racial, or religious group. He advocated relentlessly for international law to recognize genocide as a separate crime, succeeding both at Nuremberg and, later, with the adoption of the Genocide Convention in 1948.

Hans Frank served as Adolf Hitler’s personal lawyer before the Nazi leader appointed him governor of occupied Poland. Under Frank’s direction, the Nazis exterminated Poland’s Jewish population. In August 1942, they rounded up the Jews of Lemberg and massacred them. At the end of the war, the Allies tried Frank at the Nuremburg Tribunal, convicted him of crimes against humanity—the concept that Lauterpacht had invented—and hanged him.

It is impossible to know how many lives international criminal law has saved.

Both Lauterpacht and Lemkin lost most of their family members as a result of actions that Frank ordered or oversaw. Lemkin was the more affected by the tragedy: obsessed with the crime of genocide, he lobbied incessantly, even desperately, for its recognition for the rest of his life. Lauterpacht was more reserved, although Sands found a draft document that he prepared for the Nuremberg Tribunal that repeatedly singles out Frank by name.

Sands brings these three key figures to life. The book’s success stems, in part, from his personal connection to these stories. Sand’s grandfather, Leon Buchholz, was born in Lemberg in 1904 and escaped the Holocaust by fleeing to Paris with his wife and daughter—Sands’ mother. The Nazis murdered the rest of the family. Sands draws on the parallels between his grandfather, Lauterpacht, and Lemkin to powerful effect. Yet he resists the temptation to insert himself into the story, despite the fact that he is an activist international lawyer who shares many of Lauterpacht and Lemkin’s attributes.

Former Liberian President Charles Taylor in court near The Hague, the Netherlands, May 2012.

TOUSSAINT KLUITERS / REUTERS Former Liberian President Charles Taylor in court near The Hague, the Netherlands, May 2012.

Instead, Sands allows his extraordinary book to revolve around a simple question: Do we need the crime of genocide? Does the category add anything to the power and effectiveness of crimes against humanity? “The term ‘genocide,’ with its focus on the group,” Sands writes, “tends to heighten a sense of ‘them’ and ‘us,’ burnishes feelings of group identity, and may unwittingly give rise to the very conditions that it seeks to address: by pitting one group against another, it makes reconciliation less likely.” After all, relations between Armenia and Turkey remain tense because of debates over the term used to describe mass murders committed afull century ago.

But without a separate crime of genocide, the law will fail to recognize the organized, systematic, group-oriented character of certain mass murders, such as the Holocaust. The intent to destroy an entire people is particularly heinous because it entails the loss of thousands of years of a unique culture and identity.

Sands leans towards the view that the crime of genocide is redundant and even damaging, but he is a pragmatist. Lauterpacht and Lemkin’s legacies are both destined to live on, as parallel testaments to the powerful idea of human rights, to the different ways thinkers have conceived of such rights, and to the intellectual and moral energy of two remarkable men.

The wheels of international justice grind slowly. It took two decades for the Nazi Adolf Eichmann to be called to account. It was two and-a-half decades for former Chilean President Augusto Pinochet, and four decades for Kang Kek Iew, Nuon Chea, and Khieu Samphan. The leaders of ISIS, Saudi Arabia, and Syria should not sleep quietly in their beds. Thanks to Lauterpacht, Lemkin, and now Sands, the question is not whether international criminal law matters, but when it will catch up to them.

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