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| Douglas Harrison |
In the history of international law and the laws of war, the city holds an important place. Arguably, it is a birthplace of two important modern legal principles: crimes against humanity and genocide, which were developed by Hersch Lauterpacht and Rafael Lemkin, both of whom, coincidentally, studied law at the university in Lviv (today called the Ivan Franko National University of Lviv).
Lviv has changed hands eight times since 1914 and been variously called Lemberg, Lwów, Lvov and Lviv. It has a rich cultural history. Apart from the university, which dates from 1608, it has a renowned opera house and its old town is on the UNESCO World Heritage List. It also has a dark history. Before 1939, there were nearly a hundred synagogues. Under the Nazis, its Jewish population — about 240,000 in 1940 — was virtually wiped out.
Lauterpacht was born near Lviv, in 1887. He studied law there, including international law, from 1915 to 1919, but was unable to write his final exams because the school had temporarily decided to bar Jews from doing so. He then enrolled at the University of Vienna, and in 1928 completed a doctorate at the London School of Economics. His thesis, on the use of national laws to strengthen international obligations, is considered a seminal work on international law. He became a barrister in London in 1933 and in 1937, was elected to the chair of international law at Cambridge University.
Lemkin was born in 1900 in what is now western Belarus. In 1921, he moved to Lviv to study law. He was taught by many of the same professors as Lauterpacht, and he also took courses on international law. Unlike Lauterpacht, he was allowed to graduate, in 1926. He went on to work in Warsaw, first as a public prosecutor and later as a commercial lawyer. Being Jewish, he fled to Sweden in 1939, where he lectured at the Stockholm University law faculty and began researching how the Nazis used legal decrees in occupied territories to destroy entire populations.
In 1942, nine European governments-in-exile in London issued a declaration calling for criminal prosecutions of those responsible for atrocities that were being committed across the Continent. The British government then established a Commission on War Crimes and Lauterpacht was enlisted to work on it. Through that work, Lauterpacht developed the underpinnings of a new international law that would protect fundamental human rights at an individual level, as a way to punish those guilty of international crimes in occupied territories. In June 1945, he published An International Bill of the Rights of Man.
Soon after, Lauterpacht was asked to help draft an agreement to create the first international criminal tribunal, to prosecute the Nazi leaders. He ensured that “crimes against humanity” were part of the Nuremberg Charter, the foundational document of the war crimes tribunal, to describe the murder of four million individual Jews and Poles on Polish territory.
In 1944, Lemkin, by then teaching at Duke Law School in North Carolina, published Axis Rule in Occupied Europe. His intent was to educate the world about the cruelty inflicted by Germany against certain groups, principally Jews, Poles, Slovenes, Russians and Roma, based on “objective information and evidence.” In it, he coined a new word, genocide, based on the Greek work genos (tribe or race) and the Latin word cide (killing), to describe acts “directed against individuals … as members of national groups”.
Lemkin joined the American war crimes prosecution team in 1945 but his ideas were not immediately welcomed. When the Nuremberg Charter was agreed in August 1945, its list of crimes included crimes against humanity, but not genocide. In his 2016 book East West Street, University College of London professor Philippe Sands says some British officials thought the word genocide was “too fancy” and “outlandish” to include in “a serious legal document.” For his part, Lauterpacht was always dismissive of the concept of genocide, according to Sands — he believed the focus should be on the protection of the individual, not groups.
Despite the wording of the Charter, Lemkin lobbied American and British officials hard, to make the case for also pursuing the Nazi leadership for genocide.
His persistence paid off, as genocide was included in the indictment agreed to in October 1945 by the Four Powers (the U.S., the U.K., France and the Soviet Union). “Crimes against humanity” was one of the enumerated counts. Another was “war crimes,” one of which was genocide, being “the extermination of racial and religious groups.” According to Sands, this was the first time the term genocide was used in an international instrument.
Lauterpacht was a member of the British prosecution team during the trial of the Nazi leaders at Nuremberg in 1946. Among other things, he drafted the opening statement for lead British prosecutor, Attorney-General Sir Hartley (later Lord) Shawcross, which argued that the “community of nations” had the right to intervene “on behalf of the violated rights of man trampled upon by the State in a manner calculated to shock the moral sense of mankind.”
While genocide was hardly mentioned throughout the trial, Shawcross and the French and Russian prosecutors included the term in their closings, likely as a result of Lemkin’s continued lobbying. In the end, while some of the Nazi leaders were convicted of crimes against humanity, the court made no mention of genocide in its judgment, delivered on Sept. 30 and Oct. 1, 1946.
Later that year, however, the United Nations General Assembly adopted resolutions affirming not only that crimes against humanity were a part of international law, but also that genocide was a crime under international law.
Lemkin then worked to establish the Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the UN General Assembly on Dec. 9, 1948. Lauterpacht, meanwhile, worked on the Universal Declaration of Human Rights, adopted by the General Assembly one day later.
In recent years, these principles have formed the basis of prosecutions undertaken before the International Criminal Tribunals for Rwanda and the former Yugoslavia, and the International Criminal Court — all because of the groundwork laid by two former students of the law school in Lviv.
Douglas Harrison in an independent commercial arbitrator, mediator and lawyer and chair of the Toronto Commercial Arbitration Society.
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