Two Kinds of Murder

East West Street
Philippe Sands, Weidenfeld & Nicolson, 2016


East West Street was not what I anticipated. I expected a work of popular academia – ‘on the origins of “genocide” and “crimes against humanity”’, the cover reads – one of those works that tries to straddle the line between rigour and accessibility. But Philippe Sands’ new book, last year’s winner of the Baillie Gifford Prize for non-fiction, defies such categorisation. The thoroughly investigated story of four men – Rafael Lemkin, Hersch Lauterpacht, Hans Frank and Leon Buchholz – it is part legal history, part detective story. Its two main protagonists, Lemkin and Lauterpacht, were the legal scholars responsible for originating the concepts that emerged in the summer of 1945: the former for ‘genocide’, and the latter for ‘crimes against humanity’. Frank, the Nazi party’s chief lawyer and governor of Poland, was directly implicated in the acts themselves. Leon was the author’s grandfather, and the only one of more than seventy family members to survive the Holocaust. Through some accident of fate, all of these men passed through Lviv, a Ukrainian city whose geography is alluded to in the title of the book.

‘The book was an accident too’, Philippe Sands tells me, as we sit down in a café near University College London, where Sands is a professor of law. ‘That’s the first thing to make clear. I didn’t set out to write a book.’ It was only after arriving in Lviv, where he had been invited to lecture, that he came across the ‘peculiar coincidence that the origins of crimes against humanity and genocide are located in the city’. East West Street explores ‘two stories. One is a personal, family story; the other is a big story about the history of international law’. Its intent is, Sands says, is to investigate a ‘central dichotomy: the relation between the individual and the group’.

This difference is mirrored in the contrast between the legal concepts of crimes against humanity and genocide. While the former protects individuals as individuals, the latter protects them as members of groups. Both prosecute crimes with international scope or which threaten interests the international community has deemed important (this is why the systematic murder of a particular national subgroup qualifies as an international crime even if it does not have international effects). If a Bond supervillain were to pick an arbitrary million people across the world to murder, this would constitute a crime against humanity, but would not be genocide, which requires the intention to kill to destroy a group in whole or in part. Interestingly, although the term ‘genocide’ has captured the public’s imagination in situations like the Holocaust, it was not mentioned in the judgement at the Nuremberg trials. According to legal academics at the time, including Cambridge professor Hersch Lauterpacht, it was a gerrymandered concept with little basis in existing law. It was only through the efforts of the relentless Lemkin – which, Sands says, were a ‘lesson in the power of lobbying’ – that ‘genocide’ came to have the legal status it does today.

If the distinction between genocide and crimes against humanity is easy to spell out, it is harder to judge which works better as a criminal charge. Indeed, their implications differ greatly. Sands tells me that he wanted his readers to ask themselves: ‘Am I an individual or am I a member of the group, and on what basis do I want the law to protect me? Do I want it to protect me because of my individual qualities as a human being or because I happen to be a member of a group?’ Lemkin and Lauterpacht, who were both Jewish and studied in the same classroom at the University of Lviv, came to opposite conclusions. For Lauterpacht, the individual was the ultimate unit of the law; it would be a mistake, if not flatly incoherent with established legal principles, to prosecute for the destruction of groups. But Lemkin saw things differently. For him, Sands says, ‘the destruction of the human being was offensive because it contributed to the destruction of a culture, and that was what he wanted to protect’. Lemkin was so devoted to this that he described the day of the Nuremberg judgement as the blackest day of his life. ‘Worse’, Sands says, ‘than the day he learnt about the deaths of his own parents and family members’.

When creating new laws, it is important to consider not only whether they’re necessary but also how natural it is to include them in legal statutes. Clearly it is necessary that some law prosecutes for the murder of people who happen to be 6’3” and taller, but it should be a law which prosecutes for the murder of anyone – not just those taller than 6’3”. But what makes it so difficult to decide between ‘crimes against humanity’ and ‘genocide’ is that both seem to cut at moral joints. The former is reminiscent of the liberalism which pervades our culture. It sees the individual as of paramount importance and values her as such, regardless of race or creed. To many scholars, I imagine, this is ideologically irresistible: because the concept treats all persons as individuals, it also treats each person as equal. It is a law which protects all human beings as human beings, not as members of a particular religious or ethnic group. This must have been what Lauterpacht believed, and from the perspective of theory it is clear why.

In contrast, genocide evokes an almost visceral horror. What seems monstrously wrong about the Holocaust, at least to me, is not only that millions were killed, but that millions of Jews were killed. The Holocaust was an atrocity that happened to a particular people, who were singled out for being members of a specific community. That Jews were killed for being Jews, and not individuals, is an important fact about the Holocaust that ‘crimes against humanity’ seems to fail to capture.

Sands himself finds himself torn between the two schools of thought, telling me that ‘it became clear as I went along that whilst intellectually, I was closer to Lauterpacht, I found it impossible to escape my own tribal connections and so I find myself in a place of essential contradiction between my head and my heart’. But there is a serious, and potentially destructive, argument against incorporating genocide into the law. The most eloquent summary of it, Sands says, is given by Leopold Kohr, a friend of Lemkin. In a private letter Kohr wrote that focusing on groups rather than individuals, ‘even if it does not always end in Hitler, leads to him’. The concern, as Sands puts it, is that ‘once you begin to focus on group identity in constructing legal concepts and rules, you tend to create a framework that reinforces group and tribal identity’. In cementing group solidarity one might further intergroup division as well.

More generally, we might call this the legal paradox of multiculturalism. In the same way that someone who seeks happiness most ardently is the least likely to find it, laws which are intended to protect groups, through enshrining their difference in a statute, end up harming them instead. This is a particular variation of what Sands has come to see as a lesson of his own experience of legal life. Every law has unintended consequences. The Treaty of Versailles in 1919, he says, was one such law: ‘possibly one of the worst international treaties ever adopted’. The lesser known, but similarly problematic ‘Little Treaty of Versailles’ was signed the same year. It granted Poland independence on the condition that the government would protect its minorities. But, Sands says, the treaty ‘created backlash because all of a sudden, the Germans, the Jews and other minorities have the right to go off to an international court and complain that their rights are being violated, but the Poles have no such rights’. When it comes to genocide, Sands worries that ‘it might tend to reinforce, as a legal concept, the very conditions that give rise to the horrors the concept seeks to solve’.

It is important, I think, to distinguish between two distinct claims at work here: that laws have unintended consequences, and that it can be very dangerous to emphasise group identity. Highlighting identity amounts to highlighting difference; whether this is done in law or not is largely immaterial. A more general paradox of multiculturalism underlies the legal one – when a group tries to protect itself, it can often make its situation yet more precarious. is happens in two steps. First, construing identities in terms of groups has the consequence of breeding prejudice. And second, because the group finds itself under threat, it rallies together. This is the notion behind racial solidarity: some African Americans have long felt that in order to achieve justice it was necessary to exhibit racial pride. Pressure crystallises identity. But if it is true that emphasising one’s identity necessarily causes animosity, then a vicious circle emerges. A group is threatened, so its members close ranks. is in turn cements division between them and others. The cycle repeats, each time worse.

It is impossible to ignore how readily this point is borne out by the xenophobia and nationalism that seems to be sweeping much of the Western world. The resonance of the themes in East West Street with events happening in the United Kingdom, Sands thinks, might account in large part for the book’s success. There are two parallels that he notes. The first of these is that ‘Britain is moving into a place in which people want to take back “control”. And taking back “control” is the phrase that, essentially, the Germans and the National Socialists ran with in the context of a situation in which outsiders were constraining their freedom from action, and when a country begins to declaim the need to take back control and to remove the shackles of international constraint, whether it’s Theresa May or Donald Trump, I worry, because I think that leads to potentially very dangerous places.’ He also highlights the remarkable role-reversal between Britain and the United States on the one hand and Germany on the other. ‘The two countries that did more than any to put effort into creating the 1945 system’, Sands observes, ‘are now turning their backs on that settlement, and the country the settlement was intended to constrain, Germany, has become a beacon of liberal democracy arguing in favour of that settlement. My instinct is that the new positions adopted by the UK and US are deeply worrisome.’

The other contemporary resonance ties in more explicitly with the phenomenon of racial backlash. It is to the law of unintended consequences that Sands attributes at least some responsibility for Brexit and the election of Donald Trump. ‘We’ve seen that right now in the United States’, Sands says, ‘with the rise of the concept of “America First”, the allegation there’s been too much [political correctness], too much protection of various groups. What these laws have done… is give rise to a modern form of identity politics, and that’s what we’re living through now. That’s one of the reasons why Britain voted for Brexit; that’s why America voted for Trump.’ The rise of ‘America First’ can better be described as the return of ‘America First’. The slogan is the same as that which was used by the anti-Semite and Nazi sympathiser Charles Lindbergh. Similar, and usually worse, rhetoric was deployed against Jews in the United States in the 1930s as is being advanced against immigrants and Muslims today.

Several very difficult questions seem to emerge from these considerations. If the concept of genocide is counterproductive and the ‘identity politics’ of the left has been co-opted, to far more deleterious effect, by the right, then should we be concerned more broadly with laws that seek to protect groups? If it is true, as Sands says, that such laws might reinforce a certain ‘psychological element’ at play in how members of one group perceive members of another, is the project of legislating against racial and religious hate misguided? To fully explore the implications of these worries, let us suppose that the project is in fact ill-conceived – that any laws which explicitly mention race, religion (or gender, sexuality, and so on) are necessarily harmful. Also, keeping in mind that laws are not the only way of furthering intergroup tension, let us suppose that to fully dissolve the problem we must ignore group identity entirely, efface it from our minds (or at least practical deliberations).

In doing this, we arrive at a world where no group animosity exists, because no one pays attention to their group identity. But this seems dystopic. Communitarianism, an influential criticism of liberalism, holds that liberal theorists fail to properly account for the important role that one’s community plays in one’s life. Regardless of whether this is the case, it does seem intuitive that the identity of each one of us is constituted by our group identities. I have no conception of myself that does not depend on being a Jew, a New Yorker, my parents’ son and my siblings’ brother. If the way to eliminate persecution, animosity and division is to cease identifying as members of groups, is that a price worth paying? This reasoning leads to a dilemma. The individuating aspects of subgroups must be whittled away or intergroup conflict, in some form or other, is destined to continue in a genuinely multicultural society. Either a country must give up cultural diversity or national unity.

Naturally this conclusion must be qualified. Even if the dilemma holds, it is possible that over time racial and ethnic tensions could subside (as in reality they often do). But it is misleading to think of ethnic identity, for instance, as constitutive of cultural identity. This is only a contingent fact of our society, although surely an unfortunate one which contributes to friction between groups. Rather, the problem presented by the paradox is that it is hard to see how substantively different cultures – ones which differ not only in skin colour or cuisine but also their conception of the good – could coexist without conflict. The real question, I think, is whether members of two groups – like religions – which have vastly different identities can peacefully share some public space. Do we need to scrub ourselves of our cultural identifications in order to get along? And if so, then what is it of value that we lose thereby?

For Sands, writing East West Street was about more than just the conflict between the liberalism of crimes against humanity and the multiculturalism of genocide. One of the other central lessons of the book, he tells me, ‘is that you cannot understand significant historical moments without unpicking the personal lives of the individuals who drove those moments’. Although this seems dangerously close to the Great Man theory of history, I do not think that is what Sands meant. It seems likely that even if Lauterpacht and Lemkin had not made their contributions to the law, a similar, if not identical, international system would still have emerged. The post-war climate was inclined to punishment: victor’s justice would have been had without Lauterpacht or Lemkin. Rather, Sands means that understanding the present system, and understanding history as it did in fact develop, requires examining the lives of those who shaped it. Personal history might not have determined intellectual history, but it is an important aspect of understanding it.

And of course, writing the book was intensely personal for Sands as well. It is clear that in tracing the story of his grandfather, he learnt much more than he could have anticipated. The story of Leon Buchholz is a fascinating one – I could not help thinking that the pages of East West Street contained a Milan Kundera novel waiting to be written. And in unpacking the lives of Leon, Hans Frank, Hersch Lauterpacht and Rafael Lemkin, Sands found himself increasingly at ease with his own identity – his own understanding of himself. Not a practicing Jew, but culturally and socially Jewish, Sands tells me that as he wrote the book he found himself ‘increasingly comfortable being rather open about’ his own Judaism, which ‘growing up in England, that sense of groupal identity, it’s not buried but it’s not something you wear on your sleeve. I mean, we all have multiple identities, and that is a part of my identity. It is not my only identity or my defining identity, but it is something that is there.’