On the origins of ‘crimes against humanity’ and ‘genocide’



IN his autobiographical book, Mein Kampf, published in 1925, Adolf Hitler expressed his views on Jews and Jewish culture. They were, he wrote, a “spiritual pestilence, worse than the Black Death.” He denied the “value of the individual among men” and stressed instead the importance of nationality and race. With religious fervor, Hitler sought the total extermination of Jews. “By fighting against the Jews, I am doing the Lord’s work,” he wrote. In January 1933, Hitler came to power. Two years later, the Nazis’ Nuremberg decrees protected the purity of the Aryan race and legalized anti-Semitism that stripped Jews of citizenship, rights, property, and their lives. Around 6 million Jews were killed in the Holocaust.

In November 1945, Nazi leaders were held to account for their monstrous crimes. The Nuremberg trials, presided over by judges from the Allied Powers—Great Britain, France, the Soviet Union, and the United States—put 22 prominent Nazis, men such as Hermann Göring, chief architect of the Nazi police state, and Hans Frank, Hitler’s personal lawyer, in the dock. Twelve were sentenced to death with no right of appeal. The terms “crimes against humanity” and “genocide” were included in the Nuremberg statutes and, for the first time in history, were applied as human rights laws to mete out justice.

Rafael Lemkin

Philippe Sands’ magisterial work East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” (2016) is an intimate memoir that historically charts how these crimes came into being, and reveals the moving personal stories that were involved. We owe the concept of “crimes against humanity” to Hersch Lauterpacht who argued for individual rights, and Rafael Lemkin, for that of genocide, based on the notion of the rights of a race or groups.

Hersch Lauterpacht

Born respectively in 1897 and 1900, Lauterpacht and Lemkin were for a while both living and studying in Lviv, a city in Central Europe buffeted by Ukrainian, Polish and Austrian influences, with a Jewish population of 100,00. Lauterpacht was a human rights advocate in the 1920s and 1930s. He went on to become a brilliant professor of law at Cambridge and is recognized today as the father of the modern human rights movement. Lemkin, a public prosecutor and lawyer in Warsaw who fled to America when war broke out, worked with the Nuremberg trial’s American prosecution team.

“I had long been fascinated by the trial and the myths of Nuremberg, the moment in which it was said our modern system of international justice came into being,” Sands writes. But this is only one impetus for him in writing the book. A prominent British human rights lawyer, Sands worked on the extradition trial of the Chilean dictator Pinochet and, in 1998, was involved in the negotiations in Rome that led to the creation of the International Criminal Court (ICC).

Sands wanted to understand how Lauterpacht and Lemkin came to independently form their ideas. He also sought to know more about the painful personal circumstances of members of his own family, many of whom, he discovered, perished in death camps. Sands’ attention is focused on his maternal grandfather Leon Buchholz who encouraged him to take up law. Also from Lviv, Buchholz, with his wife Rita, from Vienna, and daughter, Sands’ mother, was able to escape the Nazis and settle in Paris. Then there is Hans Frank, Lemkin’s contemporary. As Hitler’s lawyer, Frank was a ruthless jurist of the Third Reich who dismissed international law as a Jewish invention. At Nuremberg, thanks to Lauterpacht’s legal formulation, Frank was convicted of war crimes and hanged.

In the early 20th century, the idea that an individual had rights enforceable against the state was unheard of. International law served the sovereign. The state, writes Sands, “could do whatever it wanted to its nationals. It could discriminate, torture, or kill.” Lauterpacht pursued a revolutionary new idea—that individuals had inalienable constitutional rights and they could go to court to enforce those rights. For him, the individual as the “ultimate unit of all law” is not “disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind.” These were the words spoken by the chief British prosecutor, Sir Hartley Shawcross, at the Nuremburg trials. Shawcross, drawing largely from the ideas of Lauterpacht who drafted significant portions of his speech, asserted that those who helped a state commit a crime against humanity would not be immune from responsibility.

Lemkin’s desire was to protect groups. His notion of genocide, as he outlined in his book Axis Rule in Occupied Europe, published in 1944, concerned acts “directed against individuals, not in their individual capacity, but as members of national groups.” Genocide was a new term that aimed to capture a new conception of rights. In analysis that was detailed and original, Lemkin described how the “extermination of nations and ethnic groups” came in stages: the killing off of the intelligentsia, the destruction of culture, the creation of ghettoes and the imposition of a defined status on a group, the prohibition of free movement and use of public transport, and the depopulation of territories by starvation or other forms of mass killing.

Lemkin’s notion of genocide was adopted by the UN General Assembly in 1948 in what would be the first human rights treaty of the modern era. He died in New York in 1959. Lauterpacht was appointed the first British judge at the International Court of Justice in The Hague. He died in Cambridge in 1960.

Reflecting on the achievements of Lauterpacht and Lemkin, Sands sees them as two radical young men whose ideas “have had global resonance, the legacies reaching far and wide. The concepts of genocide and crimes against humanity have developed side by side, a relationship that connects the individual and the group.”

The Nuremberg trials

It took 50 years after the Nuremberg trials before an International Criminal Court was established. Sands was responsible for inserting the following line in the preamble: “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”

For the first time in Philippine history, we are seeing the rights of the individual being enforced in an international court against the Philippine State. On April 24, 2017, Jude Josue L. Sabio, a Filipino lawyer from Cagayan de Oro City in Mindanao, submitted an official complaint to the office of the prosecutor at the ICC at The Hague. His communication is titled: “The situation of mass murder in the Philippines, Rodrigo Duterte: the mass murderer”. The last paragraph of his brief covering letter reads: “Your favorable action on this matter would not only serve the noble ends of international criminal justice but would also be the beginning of the end of this dark, obscene, murderous, and evil era in the Philippines.”

With Sen. Antonio Trillanes and party-list Rep. Gary Alejano filing a supplementary communication in June 2017, Sabio is invoking the hard- won legal principle the world has come to know as “crimes against humanity.”



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