Except for His Father

Isabel Hull

  • East West Street: On the Origins of Genocide and Crimes against Humanity by Philippe Sands
    Weidenfeld, 437 pp, £20.00, May 2016, ISBN 978 1 4746 0190 0

Before 1914, Lemberg was the fourth largest city in the Austro-Hungarian Empire. The multilingual, multicultural capital of the semi-autonomous province of Galicia, Lemberg was half Polish, a quarter Jewish and a fifth Ruthenian (Ukrainian). In addition to its cosmopolitan attractions (an opera house, a large museum, a university), it was also home to Austria’s easternmost fortress. Barely a month after the beginning of the First World War, that fortress fell to the Russian army, marking the start of decades of struggle to control (and rename) the city. It shifted back and forth between Austria and Russia during the Great War: ‘Lemberg ist noch in unserem Besitz’ (‘Lemberg is still in our possession’) became a cliché of Austrian propaganda, bitterly lampooned by Karl Kraus in his play The Last Days of Mankind – the phrase repeated again and again as Austria slides into oblivion. The new states of Poland and Ukraine battled for the city in 1918, touching off a pogrom that killed more than a hundred Jews. Poland emerged victorious and Lemberg became Lwów until 1939, when it fell to the Soviet Union as spoils of the Nazi-Soviet Pact (and became Lvov). When Germany attacked the Soviet Union in June 1941 it retook the city, which became part of the General Government of Poland, an area Germany occupied but didn’t annex. The region’s governor-general, Hans Frank, presided over the extermination of Polish intellectuals and almost all of Lemberg’s Jews. In January 1945, the city fell again to the Soviets, and after 1989 became part of Ukraine, once more under a new name, Lviv.

Each exchange of control and name was accompanied by state-sponsored or tolerated mass ethnic killings. The first of these, the anti-Semitic pogrom of 1918, spurred the Allies to require that Poland and other Eastern European successor states sign Minority Treaties that traded recognition of sovereignty for international oversight over the treatment of ethnic minorities within their borders (thus limiting that same sovereignty). Poland regarded the Minority Treaties as a national humiliation and renounced them in September 1934. In 1945-46, Lemberg figured again in international attempts to deter or punish official mass killing, this time at the International Military Tribunal in Nuremberg. The Soviet prosecutor focused on the exterminations in the city as exemplary of ‘crimes against humanity’, count three of the four indictments at Nuremberg. Thus, Lemberg can stand, and has stood, for two different ways in which international law defines and prohibits state killing: as a crime perpetrated against groups or as a crime against (large numbers of) individuals. More remarkably, Lemberg (or Lwów) law school trained three of the protagonists in this drama: Hersch Lauterpacht, a Cambridge academic and influential behind-the-scenes adviser at Nuremberg, who refined the concept of crimes against humanity and drafted much of the language in the indictments and prosecution arguments; Rafael Lemkin, who coined the word ‘genocide’ to refer to the intentional extermination of whole groups and who worked tirelessly and in the end successfully to introduce that concept into international law; and Jan Karski, a member of the Polish underground who furnished vital information about the Nazi extermination programme to the Allies. Two other lawyers were central to this story on the other side: Hans Frank, the governor-general of Nazi-occupied Poland, and Otto von Wächter, SS lieutenant-general, governor of Kraków and then of Galicia, and a former classmate of Lauterpacht’s in Vienna. Frank and von Wächter were both responsible for the ‘great action’ of August 1942, when the Jews of Lemberg were rounded up and sent to their deaths. Philippe Sands’s remarkable book is a voyage of discovery into the lost world of Lemberg/Lwów, its people, and their actions and ideas as these rippled outwards into the larger world we still inhabit.

In 2010, Sands, an experienced international human rights lawyer, was invited to lecture in Lviv. As he prepared for his visit, he began to unearth a web of personal connections that bound him to this city where he had never been. Sands, we learn at the end of the book, studied law under Eli Lauterpacht, Hersch’s son. Sands is also the grandson of Leon Buchholz, who came from Zółkiew, a village about seventy kilometres north of Lemberg, the same village where the Lauterpacht extended family lived; in fact, they lived on the same street: the East West Street of the title, which runs through Zółkiew from east to west, and, before 1914, was called Lemberg Street.

Sands embarked on a lengthy project, the fruits of which are chronicled in this book. Extraordinary perseverance and creativity were necessary because of the deep silence that still engulfs personal experience of the mass murder of the Jews. Leon Buchholz, Sands’s grandfather, never spoke of his life before the war or how he escaped to Paris; he looked relentlessly forward. Hersch Lauterpacht never spoke to his son of the family in Poland, their fate, or of his work for the Nuremberg trials. But this ubiquitous silence was not the same as forgetting. As one of Sands’s few surviving relatives explained to him, after he discovered her in Israel, ‘I decided a very long time ago that this was a period that I did not wish to remember. I have not forgotten. I have chosen not to remember.’

The survivors’ silence posed many questions. Why did Leon, the grandfather, who by 1939 was living in Nazi-annexed Austria, leave for Paris without his wife and daughter? More puzzling, why did his daughter, Ruth, Sands’s mother, travel to Paris at the age of one accompanied not by her mother, but by a stranger? Who was that stranger who rescued her from extermination? As Sands dug deeper, he also faced the questions left by the killers, Hans Frank and Otto von Wächter. Were these men bureaucratic cogs, or movers and shakers? Were their families aware of what their husbands and fathers were doing? Did they care? And then the questions surrounding Lauterpacht and Lemkin: how did two lawyers from Galicia end up exercising such an influence on the shape of international law? Why did they approach the greatest crime of the century in exactly opposite ways?

Faced with silence and questions, Sands began his search with the few documents that Leon had left behind: his Fremdenpaß, or stateless person’s pass, which gave the date of his departure from Vienna; a packet of photographs, some with inscriptions, others anonymous; a scrap of paper with the name and address of a woman in Britain, written in someone else’s handwriting. From these scant beginnings, Sands began this riveting odyssey of discovery. The documents led him to people whose memories and personal documents led him to still other people and more documents. Like all good detectives, Sands is motivated by a genuine interest in individuals. He is generous in judging them, tolerant of their failings, appreciative of their honesty, and above all careful and gentle in approaching the most difficult, shameful, emotion-laden parts of their past. He elicits the most extraordinary revelations from his subjects. We watch von Wächter’s son, Horst, struggle to hang on to the vain hope that his father was not a mass murderer. How different from the reaction of Niklas Frank, the governor-general’s son, who carried in his wallet the 1946 photograph of his recently hanged father, just to reassure himself that he was dead. ‘I am opposed to the death penalty,’ Niklas told Sands, ‘except for my father.’

This book is driven alternately by documents and the people whom Sands meets through them. He uses a variety of forensic and historical-critical methods to interpret cryptic data, everything from DNA tests to handwriting analysis. He ponders the stream-of-consciousness scribblings and doodles left by Lemkin on a scratch pad. He scrutinises photographs, noting when the subjects seem most relaxed or stiff – who is present, who is absent? He observes the white socks of an unknown man in a snapshot taken in Vienna in the 1930s, and we learn that this attire reveals the man’s probable Nazi affiliation. He combs the archives for pictures from inside the Nuremberg courtroom, looking for clues about who was present during certain testimony.

When you research into the past this broadly – investigating enormous events like mass murder and world war – and also look deeply into the personal experiences of dozens of people you discover the strange dialectic between coincidence and system. This dialectic is one of the recurring fascinations of this book. On the level of the absurd, Paula Hitler, Adolf’s sister, was in the 1920s housekeeper of the dormitory run in Vienna by the World Union of Jewish Students, whose chairman was Hersch Lauterpacht. On the level of the cunning of history, at a conference in 1935 Hans Frank, then Hitler’s personal lawyer and president of the Academy for German Law, attacked the views of the French jurist Henri Donnedieu de Vabres on criminalising aggressive war. In 1945-46 at Nuremberg, Donnedieu sat in judgment of Frank. Another example: the Armenian genocide brought together two men who a quarter of a century later became important protagonists at Nuremberg. In 1921, the Armenian assassin of Talat Pasha, one of the chief génocidaires, was acquitted by a Berlin jury. Robert Kempner, a young law student, observed the trial, which was widely reported and which sparked Rafael Lemkin’s obsession with criminalising state-sponsored mass murder. Neither man knew the other. In 1946, Kempner, now on the US prosecution team, personally (that is, acting partly against the intentions of his colleagues) helped Lemkin gain access to the Nuremberg proceedings, where he successfully lobbied to insert his neologism, ‘genocide’, into the trial record.

This book illustrates again and again the simultaneity of the systemic and the personal. It demonstrates how grand politics affects individuals, for everyone is in many ways at the mercy of states. As Sands remarks, ‘My own existence owed something to Art. 4 of this Minorities Treaty.’ Why? Because Buchholz, who had started life as an Austrian, became Polish as a result of the boundary-drawing after the First World War, and as a Jew was ‘protected’ by the Minority Treaty that Poland then renounced in 1934. The state gaveth, and the state tooketh away. That renunciation made Buchholz, by that time living in Vienna, ‘stateless’. For a brief moment between March 1938, when Nazi Germany annexed Austria, and the start of the war, statelessness was a useful status. It caused Germany to expel him, and thus saved his life. Not that France wanted him. In Paris, every month for a solid year Buchholz fought the legal machinery that denied him permanent residency, until the bureaucrats finally relented. Repeatedly thereafter as Germany advanced through Europe, Buchholz saved himself, was saved by others and by chance. System and coincidence: Regina, Leon’s wife and the author’s grandmother, somehow managed to leave Vienna on 9 November 1941, the day before the Nazi state closed the borders for ever and doomed the Jews trapped behind them.

As one follows Sands’s intercontinental investigation, one learns the genesis and implications of the two alternative ways of defining state-sponsored mass murder. Of the two, Lemkin’s approach is better known to the public nowadays. It focused on the official intention to eliminate whole groups. Lemkin’s work, he always said, began with that trial in 1921. But not until 1933 did he begin honing rules intended to prohibit in international law what he first called ‘barbarity’ and ‘vandalism’ – that is, the purposive destruction of groups and attacks on their culture. Lemkin was a public prosecutor in Poland when the rise of fascism cut short his career, making him a victim of the very crime he was trying to define. As he fled from country to country, he collected and carried with him the bureaucratic detritus of Nazi imperialism: the decrees and ordinances that it put into effect in the lands it occupied or annexed. Where others carried clothing, Lemkin carried documents. When the result of his researches was finally published in 1944 under the title Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Lemkin had settled on the neologism ‘genocide’ to describe these acts.

Lemkin’s most remarkable achievement, it seems to me – and the one least appreciated – is that he correctly divined from the mosaic of documents he had collected the Nazis’ intention to wipe out the Jews (and some Slavic groups) entirely. Complete extermination is an incredible idea even today. It was more incredible in 1941, before Germany invaded the Soviet Union on 22 June and unfurled the whole machinery of death. Yet that was when Lemkin told a ranking US officer in the Judge Advocate General Corps that Germany intended ‘to change the whole population structure of Europe for a thousand years’ by erasing completely ‘certain nations and races’. Lemkin was entirely right.

Whether Lemkin was right to focus the law on the ‘destruction of nations’, however, has been controversial. Lemkin wrote that genocide meant ‘a co-ordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves … Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.’ Critics have emphasised three problems with this definition: the focus on the group rather than the individual, the difficulty of proving intent, and the expansionary concept of ‘cultural genocide’, used to refer to acts of repression or assimilation designed to erase an ethnic group’s culture. Sands concentrates on the first problem, because that was Lauterpacht’s main reservation.

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In the course of his own exile from Lemberg, Lauterpacht acquired three separate doctorates and ultimately held the chair of international law at Cambridge. Unlike Lemkin, who was never able to re-establish his career, Lauterpacht was well integrated into political and academic circles. He was an influential consultant to Justice Robert Jackson, who spearheaded the American effort to try the chief Nazi defendants before an international tribunal; he wrote large sections of the British prosecutor Sir Hartley Shawcross’s opening and closing statements; and he was chiefly responsible for including crimes against humanity in the list of indictments, thus establishing it as an international crime. Lauterpacht’s aim was to limit state power and sovereignty in favour of the rights of individuals. That step widened the scope of international law by bringing individual people, not just states, under its purview. From now on, states would be prohibited from committing such crimes even within their borders. The new indictment of ‘crimes against humanity’ criminalised ‘murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds … whether or not in violation of the domestic law of the country where perpetrated’. International law now protected individuals even from the actions of their own governments.

‘Crimes against humanity’, though strengthened and made more precise in the charter that set the definitions to be used at Nuremberg, had a more secure legal pedigree than ‘genocide’, stretching back at least to the First World War and the Allied condemnation of the Armenian massacre, and arguably even as far back as the 1830s. Thanks to Lauterpacht, crimes against humanity became a focus of the Nuremberg trials. It was for this crime that Hans Frank, the man most directly responsible for murdering Lauterpacht’s, Lemkin’s and Sands’s extended families, was convicted and executed. Genocide, however, was not included among the indictments at Nuremberg, though, as a result of Lemkin’s lobbying, it surfaced in the rhetoric of prosecutors and in some of the closing statements. But in our times, genocide has surpassed crimes against humanity in political importance, primarily because of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948. Scholarship, law and policy focus on this crime, with all its practical problems. What evidence counts as proof of intention? When does cultural repression or assimilationist policy cross the line and become cultural genocide? Is genocide a crime that can only be perpetrated against ethnic or religious groups, but not against political ones?

Sands summarises the dilemma. Lauterpacht doubtless realised ‘how the law’s desire to protect some groups – as reflected in the Polish Minorities Treaty – could create a sharp backlash. Poorly crafted laws could have unintended consequences, provoking the very wrongs they sought to prevent.’ Lauterpacht feared, as a colleague of his explained, that, ‘if one emphasises too much that it is a crime to kill a whole people, it may weaken the conviction that it is already a crime to kill one individual.’ The counterargument was Lemkin’s, that ‘the focus on individuals was naive, that it ignored the reality of conflict and violence,’ and that ‘the law must reflect true motive and real intent,’ which was directed against groups. Sands’s own trial experience causes him to side with Lauterpacht. Too often, there is a ‘race between victims’. ‘I fear,’ he writes, ‘that the crime of genocide has distorted the prosecution of war crimes and crimes against humanity, because the desire to be labelled a victim of genocide brings pressure on prosecutors to indict for that crime.’ That is the dilemma we still face. The two lawyers from Lemberg have given us these two ways of using law to confront massive state evil of the kind that wiped out their city’s cultural diversity. Neither is entirely satisfactory. Both are capable of development and improvement. To that extent, we remain the heirs of Lemberg’s legacy. ‘Lemberg ist noch in unserem Besitz.’