Episode 51 - Navigating Times of Turbulence by Drawing on Lessons of the Past

In times of perilous transition we often tell ourselves change is not possible or events are out of control and there is nothing we can do. In such times it helps to look to history for inspiration and as an aid to help us navigate the chaos. The story of two ordinary individuals—Raphael Lemkin and Hersch Lauterpacht—shows how two men, deeply concerned with the needs of their time, separately made a conscious choice to bring about positive change and persevered until they succeeded against all the odds. Their deep commitment to justice, courage, creativity and dogged perseverance led to the creation of two international crimes: genocide and crimes against humanity. And it was their work, respectively, that laid the foundation for the Universal Declaration of Human Rights (Lauterpacht) and the crafting of the Genocide Treaty (Lemkin)

Transcript

Sovaida: 0:08

Hello and welcome to Reimagining Our World, a podcast dedicated to envisioning a better world and to infusing hope that we can make the principled choices to build that world. Hello, and welcome to today's episode of Reimagining Our World. I'm delighted to be with you. I'm your host, Sovaida Maani We often tell ourselves that change is not possible or that we can't do it. So it helps to take to heart the statement from the popular American historian, David McCullough, who said, and you see this here on the banner,"What History teaches, it teaches mainly by example. It is an aid to navigation in perilous times." So I thought it would be useful and helpful for us to reimagine how we could change this world of ours that is falling apart at the seams by looking at history and some past examples for inspiration. I wanted in particular to highlight and talk about the inspiring story of two very ordinary individuals, like you and I, who each made a conscious choice to bring about positive change and to persevere until they succeeded in the face of all odds. Their names were Hersch Lauterpacht and Raphael Lemkin. Now these two men lived in the period of time basically during the first World War. So the time period that concerns us is the period between the First World War and the Second World War. The setting is the town of Lviv in Poland at the time. Now Lviv at the time, at the end of the First World War was a city in which bitterness and fratricidal hatred and conflict between the Poles and Ukrainians continued to fester after the Treaty of Versailles, which was the treaty that put an end to World War I. So the Austria-Hungarian army that had been reigning in that area retreats, and Ukraine takes control of the city of Lviv and declares it the short-lived capital of West Ukrainian People's Republic. Now a vacuum in authority had been created when the Austria-Hungarians left, causing a violent nationalism to emerge and the possibility of either a Polish state coming into being or a Ukrainian state. What's interesting for our purposes is that the people there were grappling with issues of group identity and autonomy, in addition to the rise of nationalism and the emergence of new states. This may sound familiar to us as we think about what's going on in some parts of the world. Now both of these men, Lauterpacht and Lemkin happened to have resided in the city of Lviv and they attended the university there. In fact, they both studied law. Lauterpacht finished just before the end of the First World War, and Lemkin starts immediately after the end of the First World War. What is instructive, and this is what we're going to explore today, is that these two individuals chose to respond in a particular way to the difficulties that faced them and their communities. They were both deeply concerned with the needs of the age they lived in, and with the welfare of both individuals and the society as a whole. The other thing I want to mention before we delve into this is that they also shared some key traits, which I would urge you to keep in mind. They were both motivated by a desire for justice. They were both courageous in that they dared to imagine a better and more just world. They were willing to persevere and leave no stone unturned until they achieved the results they wanted. And they were both extremely creative in reaching for ideas that would change lives across the world. So let's see what was going on here. They both saw one particular problem, and that was the fact that international law at the time offered few constraints on the majority's treatment of minorities, and there were no rights for individuals within a state unless the state chose to voluntarily grant it to them, or the state was forced to grant it to them. An example of this was something called the Polish Minorities Treaty. So here we are again: end of the first World War in Poland. There were a lot of attacks on the Jews, and it was giving rise to concerns about a newly independent Poland's ability to safeguard the minority communities, the Jewish and German minority communities. Interestingly, it was President Wilson who came up with the idea of crafting a special treaty to link membership to the League of Nations, which was the precursor to the United Nations, membership to the league for Poland, with a commitment on Poland's part to ensure equal treatment of minorities. The ultimate result was this treaty, which required the Polish state to protect minorities and it provided the allies the opportunity and the entitlement to step in and protect, as obligations of international concern, those rights, should they be flouted. And there was also going to be a new, actually the first international court, the Permanent Court of International Justice at the Hague that could have hearings on these cases. Now Lauterpacht and Lemkin had this shared concern. They also shared an optimistic belief in the power of the law to do good and to protect people. And they believed that the law needed to change in order to achieve that objective. They also agreed on the value of both a single human life and the collective, the community, the importance of preserving and protecting the community. However, they were also very sharply divided. What they were sharply divided on was on the approach to use to help prevent mass killing. How could the law prevent mass killing was the big question. Lauterpacht answer in short, was to say, let's focus on protecting the individual. Lauterpacht's approach was completely different, and he said, no, the primary focus should be on protecting the group. Now, unfortunately, to some extent, each believed that their approach was the correct one. And it turns out with the benefit of hindsight, that both were important. And here we again relearn the lesson that truth is really a multifaceted gem. And we see things from different angles. We see this gem from different angles, and we see different colors in it. And instead of saying to each other,"No, you are wrong. I'm right." It might serve us better if we stood in each other's shoes and said,"You know what? Both of these ideas are really interesting and important, and they can both serve our communities." And as we'll see going forward, each of these ideas in its own right became the embodiment of a new crime in international law. One is the crime against humanity, and the other was genocide. So this was the genesis of both of these crimes that we talk about today, and they both did more than any other person to create the modern system of international justice, especially the modern law of human rights. I want to pause here a minute to say that I've culled a lot of this material about their lives and the story of the evolution of crimes against humanity and genocide from a wonderful book written by Philippe Sands, who is an international lawyer, a barrister, practices before the Hague and his book is an interesting blend of a personal family story and the lives of these two individuals. It's called"East West," so I highly commend it to you. Okay, let's get back to what we were talking about. Now let's look at Lauterpacht and what his style was and how he ended up creating, being essentially, the father of the new crime in International law of crimes against humanity. Lauterpacht was an emotionally detached individual and yet very practical. His focus was on the protection of the individual. In fact, he believed that the well-being of an individual is the ultimate object of all law. And that the individual human being is the ultimate unit of all law. He abhorred all forms of nationalism, and his worry was that a focus on groups as opposed to individuals would exacerbate the problem of us versus them. Very interesting approach. He believed that focusing on the protection of the groups would undermine the protection of individuals, and argued that therefore protection of groups shouldn't be the primary focus. And again, his fear was that focusing on protection of groups by creating a crime of genocide, as Lemkin wanted we'll see in a couple of minutes, would reinforce the latent instincts of tribalism and perhaps enhance the sense of us versus them pitting one group against the other and exacerbating the problem that we're trying to avoid. Now he was influenced by a legal philosopher-- for those of you who are interested, Hans Kelsen, who was the individual who had helped shape Austria's revolutionary new constitution, which basically held that all individuals within a state had inalienable constitutional rights and they had the right to go before a constitutional court, of which he was a member, to enforce those rights. Lauterpacht believed that states should no longer be free to act as they wished and to treat citizens as they wanted, killing maiming, destroying, disappearing them, so on. And he believed in the possibility of reigning in those powers of the state. He was motivated by justice and the relief of suffering according to one of his supervisors for his third PhD thesis. He was a brainy fellow. And this supervisor said he was a man without a trace of the political agitator in his temperament. So that emotional detachment was key to his success. He wrote a book on the international bill of rights for the individual. And in it he basically called on all governments to embrace this revolutionary new idea of a new international law to protect the fundamental rights of all human beings. He argued that this law should be enforced not only by state authorities, but by international actors. Now the Way Lauterpacht went about introducing this idea for a new crime, the Crimes against Humanity, the way he went about this teaches us a lot of lessons on persistence and tireless effort, lessons that we would do well to imbibe and implement today as we try to tackle the challenges that face our societies today. I'll give you a taste here. So he's introduced at some point to Robert Jackson, who was Franklin Roosevelt's Attorney General, and he ends up basically befriending Robert Jackson and offering his services and helping him find ways for the United States to help Britain in World War II without violating the rules on neutrality. And he continues to feed ideas to this Attorney General of the United States. And some of these ideas end up being used in the Lend-Lease Bill, which as we know was critical to winning the war. In 1941, he then meets Jackson's successor as Attorney General, a gentleman called Francis Biddle, and starts advising him on how America can attack German submarines legally. Meanwhile, he also continues as an academic lecturing on his idea of a new bill of rights and wanting to put the individual at the heart of a new legal order. And so he's wearing these two hats. He's working with the Americans, feeding them ideas, helping them out, actually being very helpful. And eventually he starts passing ideas on to the war crimes committee that was created that later became the UN War Crimes Commission was created by the Allied governments to basically gather materials on atrocities that are being committed during the war. He gets offered a seat on the new British war crimes executive and then the British Attorney General Shawcross asks him to help Britain prepare the case for a tribunal that the allies decide to set up to prosecute German officials and individuals who are acting on behalf of the state and were acting criminally. Now the allies were having trouble as to how to craft the charter of this military tribunal that's called the Nuremberg Charter. You've probably heard of the Nuremberg Trials, which were the trials in which these 24 defendants were prosecuted, but they were having trouble figuring out what crimes should we be prosecuting them for? This had never happened in the history of humanity, that nations would come together and create this court to prosecute individuals who are acting basically on behalf of states and acting criminally. So Lauterpacht again helps them and he offers verbiage for this charter. And as he does this he also manages to convince them to put in crimes against humanity as a crime, both within the Nuremberg Charter and then later as a crime within the indictment saying what these defendants are actually gonna be charged with. So there are four counts in the indictment and one of the counts ends up being crimes against humanity. Now let's look by contrast at what Lemkin is doing. While Lauterpacht is concerned with the protection of the individual, Lemkin is more concerned, as we said, with the protection of the group, and he believes that the existing rules are inadequate and he actually wants a global treaty to protect against the extermination of groups. So he does a couple of really interesting things that, again, I find fascinating and I think we can learn from. First of all, he identifies a pattern of behavior that the Germans are engaged in, and he coins a new term to describe this pattern of behavior, and that term is genocide. So this word that we bandy about so liberally these days was actually coined by Raphael Lemkin. His thought was new circumstances require a new idea, which in turn demands a new word. And later he said this new word and this new idea deserve and demand a global treaty to protect against the extermination of groups and to be used in order to punish perpetrators before any court in the world. That was his idea. He said, look, we have to face the reality that some people are hated just because they belong to a group, whether it's a religious group or an ethnic group, or a national group or whatever it is, and they belong to that group that happens to be hated at that time. Therefore those groups need to be protected. And his counter argument to Lauterpacht, as Philippe lays out very well in his book, is that an excessive focus on individuals is naive and ignores the reality that very often individuals are targeted precisely because they're members of a particular group and not because of their individual qualities. So focus on groups in Lemkin's mind was the practical approach, whereas Lauterpacht thought he had the practical approach. Lemkin also believed that proper criminal laws, if crafted correctly, could actually prevent atrocities. And he also draws on an idea that had been circulating, that had been proposed by somebody else the idea of universal jurisdiction, a principle that national courts anywhere in the world should be able to try perpetrators of the worst serious crimes. So how does Lemkin proceed? He starts by writing a pamphlet with some of his ideas in them, and he's very dogged and very persistent. The pamphlet doesn't really take hold, but he's undeterred, so he starts creating his own opportunities. If other people aren't gonna give them opportunities, he's gonna create his own. And he starts, he comes up with this idea that he can amass evidence of irrefutable crimes being conducted by the Germans, wherever they go. And he thinks if I can only amass documents and create a paper trail, it'll be like putting pieces of a jigsaw puzzle together. I'll be able to demonstrate that wherever the Germans go and as they take over increasing areas, their behavior when added together is evidence of a concentrated plot. So each decree that they issue standing alone might not signify anything or may not make it apparent what they're really up to. But when you take the totality into account, then you can see a pattern. So this is the mission that he sets for himself. Meanwhile, he gets a teaching position in North Carolina and he continues to ask people in all these territories that are taken over by the Germans, as the decrees are issued, please send me copies of these decrees. And he's starting to figure out basically what the pattern is here. He identifies certain steps. So very interesting. He says the first step that they seem to engage in is denationalization. So they basically take away the nationality of these targeted groups, individuals in targeted groups, making them stateless and therefore limiting the ability of the law to protect them. The second thing they do is they dehumanize them, dehumanization, which means they actually remove what legal rights remain from the targeted group. The third step is he says they kill the nation in a spiritual and cultural sense. So this gives you an idea of the kind of steps that he's identifying and demonstrating. This gives us a picture of what Germany was really trying to do. So word gets out on his work, on the decrees, and he's offered a consultancy in Washington, DC, at the Board of Economic Warfare. Now he's in a place where he's in touch with the upper echelons of society. He has access to the vice President of the United States and eventually also through him to the President Franklin Roosevelt. So while Lauterpacht is writing his book on the rights of man, Lemkin is also writing a book called Axis Rule." In chapter nine, he basically creates this new word that we talked about, genocide. And he describes what it means and he defines it. Now Lemkin is extremely persistent. He resorts to whatever tactics in order to get this crime seen and recognized and introduced, if he can, into the Nuremberg Charter and then have it be one of the charges with which the defendants are indicted. And he essentially ends up making a nuisance of himself. Apparently, he sets up informal sessions with different organizations and proposes his ideas. He engages when all else fails in a letter writing campaign to Eleanor Roosevelt, who'd newly been appointed the head of the UN Committee on Human Rights. He writes to Anne McCormick, who was on the New York Times Editorial Board, and he even writes to the UN Secretary General, the UN having been recently created. He even hounds the prosecution lawyers at the Nuremberg Trials. He keeps encouraging Jackson, who is now at this point, a very important person having been Attorney General, he became member of the Supreme Court of the US, and then President Truman taps him to be in charge of the Nuremberg Trials. Lemkin keeps saying to him,"You really got to read my book." So eventually Jackson borrows this book and it stays in his office. It's not returned for a year. And we know then that he, Jackson, personally makes sure that this crime, the crime of genocide, is actually included in the indictment. It doesn't get into the Charter, but it does get into the indictment. Something else I'd like to talk about briefly and highlight is Lempkin's motivation. He was always motivated by a desire for justice. When he was 11 years old, apparently, he had asked his mother why it was that when the Romans threw the Christians to the lions, the police did not intervene. In 1915, he was very affected by the mass murder of 1.2 million Armenians for no other reason than that they were Christian. Later in 1921, there was another trial that deeply affected him in Berlin, the trial of a young Armenian called Ian, who had assassinated the former Ottoman government minister, Talaat Pasha. Interestingly, in that trial, the jury was directed to set the man free if they found that he effectively had no free will. In other words, because his people had been slaughtered, 1.2 million Armenians had been slaughtered willy-nilly just'cause they were Christian, the idea was that he may have lost his ability to have free will and therefore should not be held guilty of a crime. And there was a second trial in 1918 in which there was a similar dilemma. Somebody basically taking the law into their own hands because their people had been killed. This, at this time, it was a Jewish watchmaker who shot president of the 1918 West Ukraine. People's Republic dead in Paris because he alleged that this man had ordered the murder of Jews in Russia. The dilemma the court had was that they didn't want to punish him because he had suffered so much, but at the same time, they couldn't sanction him taking the law into his own hands. So they came up with a sort of an elegant solution, which was to declare him insane and then set him free. But you can see that there are real problems here, and these are the kinds of problems that Lemkin is wrestling with and saying, okay, we really need to come up with crimes and be able to bring these individuals who commit mass atrocities to justice so that people don't find themselves in these very awkward situations. So Lempkin and Lauterpacht are all working against a backdrop. What is that backdrop? That is the end of World War II now, and the decision by the allies before the end of the war in 1942 to use criminal law to punish those guilty of committing atrocities during the war. So in 1942, nine European governments in exile meet in London and they decide on a number of things that are going to happen after the war is done, including punishing the those guilty of committing these atrocities. And they set up a commission on war crimes to collect the information that they'll need and the evidence. That's the UN War Crimes Commission that we talked about. Then in February 1945, at the end of Second World War, Churchill, Roosevelt and Stalin meet in Yalta to take decisions about how the German leaders are going to be prosecuted, and they decide to create the international military tribunal. They agree that the tribunal will exercise jurisdiction over individuals as opposed to states, and then they come up with a list of crimes. And we talked about how Lauterpacht managed to get his idea of crimes against humanity inserted as one of those crimes in the charter of the Nuremberg trials. And unfortunately, Lemkin does not get genocide included at the time, but the overarching idea here for both these men is that international law should not just be about law between states, but rather the law of mankind, of humanity. There are many successes that we see as a result of this story, and I am just going to highlight a couple of them for you. For the first time in human history, as a result of the work of these two men, and of course as the result of the work of the allies, the leaders of a state are put on trial before an international court for crimes against humanity and genocide, both of them new crimes in international law, so both men get their wishes. The other success is, that the creation of this tribunal demonstrates and is illustrative of the triumph of justice over vengeance. I wanted to share this quote with you from Jackson in his closing argument. He says,"That four great nations flushed with victory--so these are the allies-- flushed with victory and stung with injury stay the hand of vengeance, and voluntarily submit their captive enemies to the judgment of the law is one of the most significant contributes that power has ever paid to reason." So again, a reflection about today and times when emotions run high, and we all want to inflict vengeance on each other because we feel that our rights have been violated. It would behoove us to remember that a civilized humanity reaches for the rule of law and uses it as the means to bring about justice. So"one of the most significant tributes that power has ever paid to reason." I love that phrase. Another incredible success flowing from the work of these two men is that after the trial ends, a new United Nations has also been created, so all of these happenings are happening at the same time in 1945, the UN General Assembly meets a few weeks after the trial ends and passes a resolution, Resolution 95, that lays the path for a new international bill of rights. It's first time in human history. Which eventually becomes what we know as the Universal Declaration of Human Rights that was adopted in December 1948. So it's really Lauterpacht's work that leads to the Universal Declaration of Human Rights. Wow. What a legacy he has left. On Lemkin's side, Lemkin worked really hard and even though his crime of genocide was not included in the Nuremberg Charter and was not recognized by the tribunal as a crime under international law, even though they put it in in the indictment under the heading of war crimes, the UN General Assembly overrode the judgment of the court in this respect and said, no, we recognize that genocide is a crime under international law, and they declared it to be and Lemkin was exhilarated. And he sets about then doing what he believed should then happen, which was drafting a convention on genocide. And that also gets adopted in December 1948, the Universal Declaration of Human Rights and the Genocide Convention get adopted one day apart. So both of these men's work basically yields incredible fruit that we all benefit from. And then of course, 50 years later, the International Criminal Court comes into being. And that's a whole nother story. So some of you may think,"Yeah things aren't perfect. Look at look at our world. And there are still sticking points." Yes, there is still more to come. We are not done yet. And some of these things that the challenges that need to be become, include that the universal Declaration of human Rights is not binding. So the Genocide Convention is binding as a treaty, but the Universal Declaration of Human Rights is in some sense aspirational and not legally binding. Also, until now, we don't have a corollary treaty like the Genocide Treaty for the Crime of Genocide; we don't have a treaty for crimes against humanity. However, the good news is that since 2015, the UN International Law Commission has been working on drafting such a treaty and they're still drafting on it. One of the problems that Philippe Sands points to with these two crimes is that an informal hierarchy seems to have emerged that genocide is somehow a more salient crime than crimes against humanity, that genocide is the crime of crimes. And it's a very interesting approach to take because killing anybody is untenable and shouldn't happen. And is it really worse to kill a whole group of people on account of the fact that they're individuals or kill a whole group of people, the same number or fewer, but because you're trying to destroy the group? Can one really say that one is worse than the other? You're still destroying large numbers of people for no good reason. It shouldn't be happening. So really in international law, these two crimes are parallel to each other. There is no hierarchy, but somehow in popular parlance and in our society today, people seem to believe that, oh, we must convict them of genocide or else it doesn't count. And what's sad about that is that we then try to force bringing people to trial on the grounds of genocide. But the bar, the standard to prove genocide, is very high. That's another one of the problems. So very often those attempts fail, whereas if we had maybe tried to convict them of crimes against humanity we would get the conviction and they would be held accountable and they would be punished. And at the end of the day, as Philippe Sands argues, and I must say I completely agree with him, isn't that what really matters? That people be brought to account, not what the label is. And the last thing that Philippe highlights, which I want to share with you,'cause I think it's important, is that genocide does have a component of national identity to it. People get very vested in the, oh, my people have been subjected to genocide. But it doesn't contribute to the resolution of historical disputes or make the mass killings any less frequent. And in fact, it does sometimes exacerbate that sense of us versus them. Look at what their group did to my group, which had been Lauterpacht's concern. Okay, so in conclusion we can today, given everything we're faced with, we can draw inspiration and hope from the work of these two figures, Hersch Lauterpacht and Raphael Lemkin. As we become increasingly concerned with the needs of the age we're living in, we can look to what they did and draw lessons. We can reach for and harness some of the same qualities they evinced, the qualities of striving for justice, courage, creativity, and perseverance. And close again with the words of David McCullough who says that history shows that times of change are the times when we are most likely to learn. So as we live in this time of ferment and difficulty and turbulence and transition and chaos, this is precisely the time when we are probably most ready to make the next shift in our evolution, learn some new lessons, and come up with a different way of living and making this world a better place. Okay. Thank you very much. I hope you enjoy today's program. I did want to remind you that all of these episodes of Reimagining Our World are now available on your favorite podcast platforms, so please go on and subscribe for free. You can still watch them or listen to them on the CPGG YouTube channel. Please let your friends know that they can listen to them as they're taking walks or driving or doing housework or whatever, gardening, on their favorite podcast channel. That's all for this episode of Reimagining Our World. I'll see you back here next month. If you liked this episode, please help us to get the word out by rating us and subscribing to the program on your favorite podcast platform. This series is also available in video on the YouTube channel of the Center for Peace and Global Governance, CPGG.