18 Feb Book Review of East West Street: On the Origins of ‘Genocide’ and ‘Crimes against Humanity’
The story begins with an invitation of sorts. An invitation to enter the Nuremberg Palace of Justice, where the trial of Hans Frank for crimes against humanity committed during the Holocaust was underway. The Palace served as the conceptual stage of the founding fathers of international law as we know it, Hersch Lauterpacht, who also acted as a Prosecutor, and listening to the trial from a distant hospital bed in Paris, Rafael Lemkin. The Nuremberg Palace of Justice also served as the courtroom of the Nuremberg Tribunal, where Nazi leaders stood trial for crimes committed during the reign of the Third Reich.
As the reader goes deeper into the story of East West Street, they are confronted with the complex, multi-layered, and intertwining narratives of the main characters and the fate that befell them during and after the Holocaust. From the outset, the concepts of crimes against humanity and genocide are introduced in connection with their intellectual parents Lauterpacht and Lemkin, and the book makes a point of chronicling their evolution as individuals alongside the development of their contributions to international criminal law.
Starting with a chapter named “Leon”, after author Philippe Sands’ grandfather, East West Street is divided into ten chapters, a prologue, and an epilogue. Five chapters carry peoples’ names, yet Leon is the only one that bears someone’s first name. Leon’s chapter provides the entry point to the story through Professor Sands’ family history, which is linked to the broader events of World War II, the Nuremberg Trials, and the birth of modern international criminal law. The personal nature of the book’s content and design carries a message about the personal nature of the law. It also carries a message about the great importance that each of the three main characters – Lauterpacht, Lemkin, and Sands – place on it in protecting and upholding human dignity in times of great turmoil and travesty. Lauterpacht and Lemkin, both protagonists in the story, contributed to the early formation of international criminal law at Nuremberg and through their scholarship. Professor Sands is also a luminary of recent practice and scholarship. Interestingly, though both Lemkin and Lauterpacht seemed to agree that law could and should play a great role in regulating state and individual conduct, they approached how it should operate in terms of content, aim, and ambition from almost diametrically opposed positions. Lemkin framed the mass crimes of the Holocaust through the lens of victimization due to collective identity, coining the phrase “genocide”, while Lauterpacht viewed the acts as crimes against humanity. Though it is fascinating to see how their personal evolution and intellectual orientations impacted the law’s development, the work’s significance also lies in tracing and illuminating the beginnings of modern post-conflict judicial responses, placing it in a very personal and a conceptual context.
At the heart of East West Street is the fundamental tension between group versus individual identity in law and politics, as genocide is focused on protecting groups, and crimes against humanity is focused on protecting civilian populations, regardless of their shared attributes. Professor Sands notes that after the Nuremberg trial, the crime of genocide eclipsed crimes against humanity in terms of importance and stature in international justice. He provides insight from his own practice and scholarship into the way the law works in reality.
The law and judicial responses to conflict may reinforce social cleavages between groups, which reveals one of the greatest paradoxes both in East West Street and in modern international criminal law. The crime of genocide exists to penalise those who inflict great harm on people because of their inherent characteristics that may be derived from group membership. At the same time, findings of genocide may contribute to groups othering each other. There is no easy resolution of this issue, but the law and its consequences are not perfect. However, the intent to exterminate people, or communities/groups of people, based on shared attributes such as religion, is a historical reality. Therefore, a very strong argument exists for recognising this intent in the definition of genocide. From a theoretical perspective, if the intent to exterminate a group of people because of their shared identity exists, this separates the general intent to exterminate people as part of a general campaign of destruction or warfare from the specific intent to exterminate groups of people. As such, the two acts possess elements that are in part fundamentally different. It is important to recognise this, because some acts of mass criminality, such as the Holocaust, are intrinsically connected to ethnic hatred and systemic, institutionalised lack of respect for minority rights. These are highly emotive topics, not only because they are linked to grievous human rights abuses, but because for many, they touch on their personal identities and affinities.
It could be said that the crime of genocide is international criminal law’s answer to the most serious crimes against minority rights imaginable and in practice. But this does not answer the question or resolve the tension on how to prevent or deconstruct what may be part of the law’s result: reinforcing group rights, and as Sands observes, the feelings of “otherness”, of being a victim of genocide, a status bearing a gruesome sort of prestige in national or group conversations of victimhood, or even of nation-building. It also leads to the following questions: Is being acknowledged as a victim of genocide as an individual or as part of a group necessarily a bad thing? Is group solidarity that derives as such something that is undesirable?
It is possible that these dilemmas will never resolve themselves neatly in terms of legal theory or in terms of the consequences of the law. Perhaps the way the law is practiced and discussed should change. For example, if the crime of genocide is in fact deemed to be higher in gravity than crimes against humanity, then perhaps the international community and advocates of international criminal justice should engage in a moment of self-reflection and should question whether genocide cases are receiving a higher level of scrutiny and attention. If so, perhaps they should question whether in practice crimes against humanity are treated with the same level of seriousness and deemed as grave as crimes of genocide.
International criminal law’s inheritance is derived precisely from East West Street’s context: The Holocaust. For many, the Holocaust represents the most graphic and widely-publicised experience that humanity has ever had in the mass extermination of peoples based on identity, as opposed to widespread or systematic attacks against civilians. What separated the two was the cold, methodical, and systematically organised decimation of a minority group whose population was in the millions. This was not an act of war in which the victims were caught in the crossfire or caught under a barrage of bombs dropped from fighter jets.
In this respect, perhaps the resolution is two-fold. Perhaps it requires a new approach both in practice and in the way information about international criminal law is communicated to the people who crave justice. First, it needs to be emphasised that the two crimes are different, but not unequal in magnitude. Tribunals should emphasise this during judicial proceedings and in their outreach efforts. Second, this reflects the importance of teaching children and the general public about something necessary for humanity to continue: respect for others, for other cultures and religious traditions.
One of the book’s best attributes is the personal nature of the content, which also ties into Sands’ professional activities as a lawyer who has practiced before international tribunals and his research interests. The tone is informal yet serious, and it opens the material to a readership wider than the usual crowd of international law enthusiasts. This is a book that is definitely worth a read.