East West Street: Dirty Hands and International Law
“War is hell” is the traditional adage. This phrase, spoken during the American Civil War, highlights with pure simplicity the immensely destructive power of conflict, its torturous effects on humanity, and the violation of civil society it represents. And, as I have shown in a prior review (Rogers, 2018), atrocities in war can be the most repugnant of any form of human violation.
Yet for centuries the simple fact of war was this: the winner takes all. Atrocities committed by the victor are forgotten, and atrocities committed by the loser are severely reprimanded - usually through other atrocities. As Donald Kagan highlights, war is filled with acts that violate civic, cultural and religious taboos. (Kagan, 2004).
In some ways, there is a form of justice to this. If the victor has to commit an appalling act to ensure the survival of his community, surely he is justified in doing so? This is the problem of Dirty Hands, coined by Michael Walzer and touched on brilliantly in a piece by Olivia Flett in a previous Juncture Review (Flett, 2018), additionally it is one of the important considerations in the book ‘East West Street’.
In the novel Sophie’s Choice, the crux of the book comes down to one fateful decision: in the face of the Nazi officer refusing to let Sophie take both of her children with her into a concentration camp, which of the two does she allow to die? She has three choices:
Allow the Nazi officer to kill her son;
Allow the Nazi officer to kill her daughter;
Refuse to play the Nazi officer’s game, and have both her son and daughter die.
This might seem abhorrent (it plainly is). Whatever one chooses, one gets their hands ‘dirty’; doing something that is horrifying and morally repugnant, but in order to separate the bad from the terrible. Doing nothing is still making a choice (Woollard et al., 2016) even if that choice is horrid.
Indeed, in ‘East West Street’, Philippe Sands shows that this is not merely a theoretical problem, highlighting the case of Herta, an eleven year old Polish Jew whose mother, Laura, can’t bring herself to be separated from her child and, at the last minute, refuses to let her on a train out of Vienna in 1939. By 1941 both have been interned in a ghetto and perished. Decisions, however painful and morbid, have consequences. And the refusal to see gradation between bad acts and terrible acts can be immensely costly. Sands himself owes his life to the fact that his grandmother did not prevent his mother getting on that train.
Dirty Hands is not the only question that ‘East West Street’ is interested in considering, however. The question of international law is fundamental to the book, with the depraved acts of the Nazis spurring nations to cultivate the international legal system. The novel focuses centrally on four figures: Leon Bucholz, Sands’ grandfather, born in the town of Lemberg in 1904 who escaped the holocaust; Hersch Lauterpacht, a distinguished academic law professor who was also from Lemberg and was influential in getting the notion of ‘crimes against humanity’ onto the list of offences for prosecution and the Nuremberg trials; Rafael Lemkin, a one-time resident of Lemberg, as with Leon and Hersch, and another influential lawyer, this time developing the notion of ‘genocide’ to try war criminals. Incredibly, he and Lauterpacht even shared a lecturer in Lemberg and Hans Frank, the Nazi minister responsible for the occupation of Lemberg and the governor-general of Poland as a whole.
Using exceptional investigatory skills, digging through archives, contacting relatives, scanning through documents and photographs, looking at census data, Sands effectively builds a biography of each of our protagonists (and antagonists). Perhaps the most interesting of these is Leon, his grandfather, a Polish Jew who feels the brunt of Nazi occupation. For a proud man to have his possessions stolen, be separated from his immediate and distant family and to be left stateless is an extraordinary, disgusting thing. However, we know with the benefit of hindsight that much worse awaited those who did not or could not flee.
The question of the difference between ‘crimes against humanity’ and ‘genocide’ is central to Sands’ discussion. Where the two might often be seen to overlap in public conceptions of international law and political discourse, the distinguished barrister and member of the Queen’s Counsel, highlights that they are, in fact, considerably different. ‘Genocide’ refers to crimes against specific groups. Genocide of the Jews, or the Rohingya, or the Tutsi for example. Conversely, ‘crimes against humanity’ refers to crimes committed against civilian populations, individuals going about their day.
Two of our protagonists, Lauterpacht and Lemkin, are central to the inclusion of these different but related atrocities. Much of the time spent on Lauterpacht focuses on his political maneuvering to get the notion of ‘crimes against humanity’ accepted in the turbulent interwar and immediate postwar period. Despite being “Allies”, the Soviets have a very different conception of what constitutes a crime as compared to the Americans. Whilst the Anglo-American legal traditions depart significantly from those of France. Only with much compromise could cooperation be organised.
Conversely, for Lemkin, the struggles derived from the opposition of the Americans to the inclusion of ‘genocide’ on the list of crimes. This partly stems from the notion that the focus on groups was, itself, problematic. The focus on groups had allowed for the rounding up of peoples into categories that could be legally persecuted under the Nazi regime. Nevertheless, Lemkin is successful in convincing the orchestrators of the fledgling international law that it is worthy of inclusion. From our modern perspective, I would suggest that this was the correct decision.
Such difficulties represent the significant challenges at the heart of the burgeoning field of international law: if states were going to see their power curtailed, their ability to treat their citizens as they choose to treat them, the diminution of their sovereignty and the imposition of a global court that could try their leaders, it was never going to be a simple task.
‘East West Street’ is a wonderful, depressing, joyous and interesting narrative political history looking at the creation of two crimes that have had a seismic impact on the modern nation state and our conception of individual rights. The work of Rafael Lemkin and Hersch Lauterpacht, often derided and mocked as impossible or undesirable led to the creation of the International Criminal Court and the protection of minorities across the world. It’s implementation has not been perfect. Indeed, it has often fallen far short.
Nevertheless, this book gives an incredible account of the work that went into creating it. It is a story of academic endeavour and personal consequences. It is a story that should make us more optimistic about our ability to unite ourselves in common opposition to universal evils. With the current state of the world, some of that optimism, even in a book about Nazi atrocities, is very welcome.
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Rogers, J. (2018), “The Chinese Holocaust and the Politics of Silence”, Juncture Review, May 3 2018. Available at: https://www.junctureuom.co.uk/post/the-chinese-holocaust-and-the-politics-of-silence (Accessed: 23/11/2019)
Flett, O. (2018), “Drones, Trolleys and Dirty Hands”, Juncture Review, Oct 29 2018. Available at: https://www.junctureuom.co.uk/post/drones-trolleys-and-dirty-hands (Accessed: 23/11/2019)
Kagan, D., The Peloponnesian War (London: Penguin Publishing, 2004).
Woollard, F. (2016), “Doing vs. Allowing Harm”, Stanford Encyclopedia of Philosophy, Nov 1 2016. Available at: https://plato.stanford.edu/entries/doing-allowing/ (Accessed: 23/11/2019)