Book Review: ‘East West Street: On the Origins of Genocide and Crimes against Humanity’ by Philippe Sands

We are delighted to welcome this guest book review from Samantha Williams, PhD candidate at the CCJHR and School of Law, UCC.

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

Within an ever-expanding body of literature concerning World War II (WWII), Philippe Sands’ latest publication is a welcome and unexpected addition. Flipping the genre on its head, East West Street is a beautifully crafted text, focusing on a series of extraordinary historical coincidences.

Professor Philippe Sands QC, a practising barrister and Professor of International Law at University College London, is well known internationally as a leading scholar of genocide and crimes against humanity. As a barrister, working from Matrix Chambers, he was involved in the creation of the International Criminal Court, as well as a number of high-profile cases relating to accusations of genocide.

East West Street weaves together a collective narrative which is focused on the interrelated lives of four men, Hersch Lauterpacht, Raphael Lemkin, Hans Frank and Leon Bucholz, the latter, Sands’ maternal grandfather.  Part family biography, part history, part memoir and with a hearty dash of legal thriller – Sands serves as both tour guide and detective as he effortlessly weaves together several interconnected narratives using the town of Lviv in Ukraine as a starting point. Representing a departure from his previous catalogue of academic works, Sands draws the reader into a work which is best described in his own words as “a tale of four men, two legal norms, one trial and one city.”

Through the first part of the book, Sands leads us through the lives of these four men with a keen and eagle-like precision, poring over the “muck of evidence” with the same dogged perseverance that he does when filling in gaps in his own family history. Forever delving and going to great lengths to piece together the background and context within the interconnecting lives of these four men.

The role of the infamous Nazi lawyer Hans Frank, the man responsible for the decrees instructing the rounding up and mass murder of Polish-Jews, is juxtaposed with Raphael Lemkin and Hersch Lauterpacht, two forefathers of international law and creators of the terms “genocide” and “crimes against humanity”. Frank is also the man also responsible for the murder of the entire families of Lauterpacht, Lemkin and Buchholz – all of whom were wiped out in places now seared into the pages of history, Treblinka, Warsaw and Auschwitz. It is no surprise that Sands chose to bookend the text with the trial of the Nazi war criminals – a stark reminder that beyond their similar upbringing in the town of Lviv the narrative of the story is intrinsically interwoven with the harsh realities of the Holocaust.

It is arguably this perseverance and unwavering determination which is most engaging and thrilling for the reader, who at times may be mistaken for forgetting that the emerging story is not in fact a thrilling detective story, but instead an all-absorbing mini-biography of Lauterpacht, Lemkin and Buccholz. Such detailed and masterfully executed detective work is the cornerstone which supports the magic of Sands’ work. This perseverance and evidence-based writing is where Sands’ strength as both a practitioner and as a writer come to fruition.

The second half of the book moves away from its biographical starting point to compare and contrast the conceptions of crimes against humanity and genocide and the opinions of the men who drafted these. For Lauterpacht, it was individuals who ought to be the focus of such a new crime and thus, crimes against humanity was conceived. For Lemkin, the atrocities of Nazi Germany had been aimed at individuals as members of distinct ethnic groups, Roma, Jews, and minorities in general – so for him this new crime needed to lend a previously unseen level of protection to such groups, thus genocide was created.

The apparently conflicting basis for these two new crimes are examined in depth within the book as Sands highlights both the thought process and advocacy that both men had to go through to have their terms included in the Nuremberg judgments. For Lemkin, this was much more of an uphill struggle than for Lauterpacht – Sands credits this fight for legitimacy as attributable to both Lemkin’s rather alienating personality and the wariness of the prosecutors to adopt such a radical new take on a state’s responsibility. Genocide signaled a clear departure from the ideas of state sovereignty, that a state can do whatever it wishes to those under its sovereign power and within its borders. While such reasoning is artfully explored, as one would expect of a barrister and Professor of International Law, Sands’ preference towards Lauterpacht is markedly clear:

I was instinctively sympathetic towards Lauterpacht’s view, which was motivated by a desire to reinforce the protection of each individual, irrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it … It was a rational, enlightened view.

This clearly marked bias serves somewhat to detract from the larger analysis of these two great men and the norms which they constructed. In a recent event held at UCL, On Law, Life and Literature, Sands was asked about such leanings, and answered frankly, arguing that the crime of genocide is now part of a hierarchy of international law norms, and its usage is often inexplicably (and perhaps mistakenly) favoured over crimes against humanity. For Sands, as both a practitioner and as an academic, this amounts to a huge oversight – “a direct consequence of the idea of a group having been elevated higher than that of the individual.”

This elevation is ultimately troubling for Sands as it “downplays the significant role that individuals play within international law.” However, in doing so it is suggested here that Sands somewhat oversimplifies the key differences between Lauterpacht and Lemkin’s approach to this rebirth of international law. Sands perhaps undersells the significance of what Lemkin was envisioning in his attempts to bring focus back to a renaissance or reimagining of previous incarnations of minority rights safeguards, such as the Polish Minority Treaty, also known as the ‘Little Versailles Treaty.’

This bias is also clear further on in the narrative when Sands notes that Lemkin’s approach was always likely to fail to win over the imaginations of the Allied Prosecutors. Sands attributes this to Lemkin’s flaws as an individual and general ‘unlikeability’. However, it is suggested that this was more likely to be due to the focus of his newly conceived idea. Particularly, as genocide’s focus was to protect the rights of minority groups from a repeat of the horrific atrocities of Nazi Germany.

A quick overview of the historical the context of the time, an era of civil unrest under Jim Crowe in America and the rise of unrest in the Colonies of the British Empire, highlights the dangerous that the idea of genocide with its protections afforded specifically to groups, could have caused. Specifically, as historically both the US and most notably the UK had treated minority groups in a way that the newly emerging crime of genocide could be applied to. Such opposition suggests the Lemkin’s idea might have been getting at something important and was ultimately widely applicable to the acts of the Allied Powers both prior to and post-WWII. Sands’ diminishing of historical context here suggests a slight oversight of the intrinsically institutionalised nature of ethnic and racial prejudice in most European States at that time.

It is also worth noting that weaving a personal, biographical story with an exploration of important legal norms and the figures behind these placed certain limitations upon the book and its relevance. Furthermore, Sands’ preferential treatment of Lauterpacht over the “less likeable” and “wayward,” Lemkin leads the book to descend dangerously close to hero worship (a point noted by Mark Mazower in his review of East West Street). However, such slight oversights ultimately do not detract significantly from what is a well-written and immaculately researched work.

In conclusion, East West Street is an impeccably detailed read, set within the historical context in a way which elevates it from other works focussed on the intricacies of international law and WWII literature. Part historical detective story, part family history, part legal thriller, Sands guides with a gentle hand and highly descriptive writing between past and present – as the stories of the men unfold in parallel. Unravelling this personal story, yet simultaneously weaving this into the lives of Lemkin and Lauterpacht – Sands keeps the reader engrossed throughout – even when discussing in great analytical detail certain elements of the Nuremberg Trials. For this, East West Street undoubtedly deserves the acclaim and literary accolades it has received since its publication in the summer of 2016. Yet one would expect nothing less from Sands.

Racial Stereotypes in Family Reunification Law: the case of Biao v. Denmark before the European Court of Human Rights

Dr Fulvia Staiano, former Irish Research Council Post-Doctoral fellow, CCJHR, School of Law, University College Cork

On 24 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) identified an instance of indirect discrimination in the case of Biao v. Denmark. The case concerned the exclusion from family reunification of the applicants – a Danish citizen of Togolese origin and his Ghanaian citizen wife – on the grounds that they satisfied neither the so-called “attachment requirement” nor they fell within the scope of the “28-year rule”. As to the first, pursuant the 2000 Dutch Aliens Act only couples whose aggregate ties with Denmark are stronger than those with any other country may obtain a residence permit for the purpose of family reunification. The 28-year rule, however, exempts from such a requirement couples where one of the partners has been a Danish national for at least 28 years, or is a non-Danish citizen who was born and/or raised in Denmark and has lawfully resided there for at least 28 years.

Before the ECtHR, the applicants argued that the Danish family reunification regime generated indirect discrimination on the grounds of race and ethnic origin. They submitted that the majority of people who have been Danish citizens since birth are ethnically Danish, while those who acquire Danish citizenship later in life are more likely to be of other ethnic origin. Therefore, in their view the 28-year rule did not pursue a legitimate aim, and in any case it lacked a legitimate justification. The second section of the Chamber had not been receptive to this line of argumentation, choosing to frame the case merely as one of differential treatment between persons who had been Danish nationals for more than 28 years and persons who had been so for less than 28 years. The Grand Chamber, on the other hand, established that the core question posed by Biao was whether the 28-years rule amounted to indirect discrimination on the grounds of race and ethnic origin.

The ECtHR first assessed the existence of a disparate impact of the rules at issue on Danish citizens of non-Danish ethnic origin. Despite the unavailability of statistics on the allegedly disproportional prejudicial effect of the 28-year rule on this group, it established that it could be reasonably assumed that Danish citizens born and raised in Denmark would be of Danish ethnic origin – while those who acquired citizenship later in life would be of foreign ethnic origin. Thus, the 28-year rule indirectly favoured the former.

The ECtHR then moved on to consider the existence of a legitimate aim, considering that the burden of proof had shifted to the Government and that very weighty reasons would have to be put forward to justify the identified indirect discrimination. The ECtHR observed that the aim of the 28-year rule – as emerging from its preparatory works – was to allow Danish expatriates to return to Denmark and obtain family reunification there. Moreover, the extension of the attachment requirement to Danish citizens was justified in the preparatory works as a way to foster the integration of those among them who were originally of foreign extraction. In the Government’s view, indeed, the latter showed a tendency to marry persons from their country of origin, and this in turn allegedly hampered their integration. Recalling its landmark judgment of Konstantin Markin v. Russia, the ECtHR rejected such justifications as stereotypical. These biased assumptions therefore could not justify the difference in treatment at the disadvantaged of naturalised Danish citizens. Since it was not possible to identify other very weighty reasons unrelated to race and ethnic origin, the ECtHR recognised a breach of Art. 14 in conjunction with Art. 8 ECHR.

The Biao judgment constitutes an important deviation from the traditional reticence of the ECtHR to identify and reject stereotypical justification on the grounds of race and ethnicity within migration law. This feature was already observable in Abdulaziz, Cabales and Balkandali v. the United Kingdom, where the imposition of stricter conditions to obtain leave to remain in the United Kingdom exclusively to non-patrials was considered not “racist in character”. In the ECtHR’s view, the disparate impact of such norms on certain ethnic groups was simply due to the fact that “among those wishing to immigrate, some ethnic groups outnumbered others”.

In the case at issue, on the other hand, the ECtHR recognised the discriminatory character of racial stereotypes, arguing that the latter may not justify differential treatment. This type of reasoning is well established in the ECtHR jurisprudence in respect to gender stereotypes and sex discrimination (Marckx v. Belgium, the abovementioned Konstantin Markin, Vrountou v. Cyprus), but its application to race discrimination is a welcome novelty.

The effects of the Biao judgment on the Danish 28-years rule remain to be seen. Both concurring and dissenting opinions accompanying the decision highlighted the risk that the exemption from the general attachment requirement will be eliminated altogether. The possibility of further restrictions to the right to family reunification in Danish law in response to this judgment appears plausible. However, the principles established in Biao constitute an important limitation to the discretionary power of Council of Europe State Parties to grant preferential treatment to those born on their territory (as outlined from Abdulaziz onwards). The newly found awareness of the ECtHR that such differentiations can produce a disparate impact on the grounds of race and ethnic origin is a significant dent to this tenet.

Dr Fulvia Staiano’s recent book is now available: The Human Rights of Migrant Women in International and European Law (2016)

 

The Story of King Tex: A Modern Allegory

Dr Dug Cubie

1st February 2017

This blog presents a modern allegory (with apologies to Lon Fuller).

In Lon Fuller’s 1969 book The Morality of Law, Fuller set out the story of King Rex, as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the “inner morality of the law.” Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller’s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump’s administration…

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex.

Eight Ways to Fail to Make Law

Tex came to the throne with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Tex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad.

His first official act was, however, dramatic and propitious. Since he needed a clean slate on which to write, he announced to his subjects the immediate repeal of all existing law, of whatever kind. He then set about drafting a new code. Unfortunately, trained as a lonely property developer, his education had been very defective. In particular, he found himself incapable of making even the simplest generalisations. Though not lacking in confidence when it came to deciding specific controversies, the effort to give articulate reasons for any conclusion strained his capacities to the breaking point.

Becoming aware of his limitations, Tex gave up the project of a code and announced to his subjects that henceforth he would act as a judge via Twitter in any disputes that might arise among them. In this way under the stimulus of a variety of cases he hoped that his latent powers of generalisation might develop and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code. Unfortunately the defects in his education were more deep-seated than he had supposed. The venture failed completely. After he had handed down literally hundreds of fabulous decisions within the confines of 140 characters neither he nor his subjects could detect in those decisions any pattern whatsoever. Such tentatives toward generalisation as were to be found in his opinions only compounded the confusion, for they gave false leads and alternative facts to his subjects and threw his own meagre powers of judgment off balance in the decision of later cases.

After this fiasco Tex realised it was necessary to take a fresh start. His first move was to subscribe to a course of lessons in generalisation. With his intellectual powers thus fortified, he resumed the project of a code and, after many hours of solitary labour, succeeded in preparing a fairly lengthy Executive Order. He was still not confident, however, that he had fully overcome his previous defects. Accordingly, he announced to his subjects on Twitter that he had written out a GREAT CODE and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his family. To Tex’s surprise this sensible plan was deeply resented by his subjects, who took to the streets in their thousands to protest. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were.

Stunned by this rejection, Tex undertook an earnest inventory of his personal strengths (which were legion) and weaknesses (of which he had none). He decided that life had taught him one clear lesson, namely, that it is easier to decide things with the aid of hindsight and by reflecting on the good old days than it is to attempt to foresee and control the future. Not only did hindsight make it easier to decide cases, but – and this was of supreme importance to Tex – it made it easier to give reasons. Deciding to capitalise on this insight, Tex hit on the following plan. At the beginning of each calender year he would decide all the controversies that had arisen among his subjects during the preceding year. He would accompany his decisions with a full statement of reasons. Naturally, the reasons thus given would be understood as not controlling decisions in future years, for that would be to defeat the whole purpose of the new arrangement, which was to gain the advantages of hindsight. Tex confidently announced the new plan to his subjects over Twitter at 3am, observing that he was going to publish the full text of his judgements with the rules applied by him, thus meeting the chief objection to the old plan. Tex’s subjects received this announcement in silence, then quietly explained through their more enlightened democratic representatives that when they said they needed to know the rules, they meant they needed to know them in advance so they could act on them. Tex muttered something to the effect that they might have made that point a little clearer, but said he would see what could be done.

Tex now realised that there was no escape from a published code declaring the rules to be applied in future disputes. Continuing his lessons in generalisation, Tex worked diligently on a revised GREATER CODE, and finally Tweeted that it would shortly be published. This announcement was received with universal gratification. The dismay of Tex’s subjects was all the more intense, therefore, when his code became available and it was discovered that it was truly a masterpiece of obscurity. Legal experts who studied it declared that there was not a single sentence in it that could be understood either by an ordinary citizen or by a trained lawyer. Indignational became general; and soon a protest appeared before Tex’s gaudy palace of gold carrying signs that read, “How can anybody follow discriminatory immigration rules that nobody can understand?”

The GREATER CODE was quickly withdrawn. Reluctantly recognising for the first time that he needed assistance, Tex put a staff of experts who he hadn’t purged to work on a revision. He instructed them to leave the substance untouched, but to clarify the expression throughout. The resulting GREATEST CODE was a model of clarity, but as it was studied it became apparent that its new clarity had merely brought to light that it was honeycombed with contradictions. It was reliably reported by respected journalists that there was not a single provision in the code that was not nullified by another provision inconsistent with it. An even larger protest appeared before the golden palace, carrying signs that read, “This time the king made himself clear – in both directions.”

Once again the code was withdrawn for revision. By now, however, Tex had lost patience with his subjects and the negative attidude they seemed to adopt toward everything he tried to do for them. He decided to teach them a lesson and put an end to their carping. He instructed his remaining experts to purge the code of contradictions, but at the same time to stiffen drastically every requirement contained in it and to add a long list of new crimes such as practicing a different religion or being an immigrant. Thus, where before individuals summoned to the throne were given ten days in which to report, in the revision the time was cut to ten seconds. It was made a crime, punishable by ten years imprisonment to cough, sneeze, hiccough, faint or fall down in the presence of the king (he stressed that he was a germaphobe). It was made treason not to understand, believe in, and correctly profess that fossil fuels and human activity have no impact on climate change whatsoever.

When this GREATEST EVER CODE was sent out on Twitter a near revolution resulted. Leading citizens declared their intention to flout its provisions. Someone discovered in an ancient author a passage that seemed apt: “To command what cannot be done is not to make law: it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos.” Soon this passage was being quoted in a hundred petitions to the king.

The code was again withdrawn and a staff of experts chaired with the task of revision. Tex’s instructions to the experts were that whenever they encountered a rule requiring an impossibility, it should be revised to make compliance possible. It turned out that to accomplish this result every provision in the code had to be substantially rewritten. The final result was, however, a triumph of draftsmanship. It was clear, consistent with itself, and demanded nothing of the subject that did not lie easily within their powers. It was printed and distributed free of charge through social media.

However, before the effective date for the new GREATEST EVER CODE, REALLY had arrived, it was discovered that so much time had been spent in successive revisions of Tex’s original draft, that the substance of the code had been seriously overtaken by events. Ever since Tex assumed the throne there had been a suspension of ordinary legal processes and this had brought about a climate of uncertainty for the economy and institutions of the country. Accommodation to these altered conditions required many changes of substance in the law. Accordingly as soon as the new code became legally effective, it was subjected to a daily stream of amendments. Again popular discontent mounted; an anonymous blog appeared online carrying scurrilous cartoons of the king and a leading article with the title: “A law that changes every day is worse than no law at all.”

Within a short time this source of discontent began to cure itself as the pace of amendment gradually slackened. Before this had occurred to any noticeable degree, however, Tex announced an important decision. Reflecting on the misadventures of his reign, he concluded that much of the trouble lay in bad advice he had received from experts. He accordingly declared he was reassuming the judicial power in his own person. In this way he could directly control the application of the new code and insure his country against another crisis. He began to spend practically all of his time hearing and deciding cases arising under the new code.

As the king proceeded with this task, it seemed to bring a belated blossoming his long dormant powers of generalisation. His opinions began, indeed, to reveal a confident and almost exuberant virtuosity as he deftly distinguished his own previous decisions, exposed the principles on which he acted, and laid down guidelines for the disposition of future controversies. For Tex’s subjects a new day seemed about to dawn when they could finally conform their conduct to a coherent body of rules.

This hope was, however, soon shattered. As the online record of Tex’s judgments became available and were subjected to closer study, his subjects were appalled to discover that there existed no discernible relation between those judgments and the code they purported to apply. Insofar as it found expression in the actual disposition of controversies, the new code might just as well have not existed at all. Yet in virtually every one of his decisions Tex declared and redeclared the code to be the basic law of his kingdom.

Leading citizens from all walks of life began to hold private meetings to discuss what measures, short of open revolt, could be taken to get the king away from the bench and back on the throne. While these discussions were going on, Tex was impeached for nepotism and conflict of interests, old before his time and deeply unloved by his subjects.

The first act of his successor, President Hex, was to abolish the monarchy and introduce genuine democracy and the rule of law based on the values of non-discrimination and accountability of elected officials.

Coda: During their famous debates in the 1950s over the legality of the Nazi regime and so-called grudge informers, Lon Fuller and HLA Hart disagreed on the role of morality and the law. Hart was swift to point out that Fuller’s concept of the inner morality of the law, and his eight principles of legality, could actually uphold unjust laws. Hart argued that Fuller’s procedural natural law approach failed to engage with the substantive morality of flawed laws, as a legal system may be structurally sound yet still allow unjust laws. Fuller meanwhile countered that when people are ‘compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness…’ Both Hart and Fuller’s arguments have resonance today. The cautionary tale of King Rex was based on some of the most brutal regimes in history. One can only hope that these warnings are heeded over the next four years.

With thanks to my legal theory colleagues Patrick O’Callaghan and Natasa Mavronicola for their illuminating comments.