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How to Prosecute a War Criminal

Philippe Sands's new book is both a family memoir and a gripping courtroom drama.

DPA / Getty Images

In a 1924 article for the Frankfurter Zeitung entitled “Journey through Galicia: People and Place,” Joseph Roth referred to this easternmost region of the former Austro-Hungarian Empire—and his homeland—as a “maltreated, scorned corner of Europe” full of desolate villages and battle-scarred fields. There are some places where everything feels “unreal.” “In Lemberg it happened that a big shire horse fell through an open drain cover,” Roth writes. “The drain covers in Lemberg are no bigger, the horses no smaller than in the rest of Europe.” And yet, he adds, “God allows miracles to happen.”

Knopf, 448 pp., $32.50

Fifteen years later, many in Galicia, in particular its Jewish population, found God’s miracles to be in short supply under first Soviet and later German occupation. The NKVD carried out massacres or sent prisoners to far-flung gulags. The SS upped the atrocities, either killing within Distrikt Galizien or deporting their victims to Belzec extermination camp fifty miles northeast of Lemberg. That city, together with its surrounding woods, was no longer home to the unreal but the unimaginable. 

An outstanding new book by Philippe Sands, human rights lawyer and professor of international law at University College London, examines the lives of three Jewish men with a Lemberg connection. One was Sands’s grandfather, Leon Buchholz, who was born there; the other two, Hersch Lauterpacht and Raphael Lemkin, studied there and went on to develop world-changing laws that were first introduced at the Nuremberg trials to prosecute high-ranking Nazi war criminals. One such criminal was Hans Frank, Hitler’s lawyer and governor-general of occupied Poland. Frank becomes the book’s fourth man—at first glance a strange choice, until we discover that Lemberg came within his bailiwick, and the families of Lauterpacht, Lemkin and the author were among the millions murdered on his orders.

East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” is therefore a fusion of personal and professional interest, with Sands delving into his family’s cordoned-off past to unearth concealed truths and trace the circumstances that led to the birth of his chosen field of humanitarian law. But at the same time, Sands’s book reflects the title of Roth’s Galicia article by being as much about place as it is people. East West Street, or Lembergstrasse as it was called in Leon’s day, was home to Lauterpacht at one end and the Buchholz family at the other. Lemberg changed hands eight times between 1914 and 1945 and has also been called Lvov and Lwów. Today it is the Ukrainian city of Lviv. “In some respects,” Sands writes in his acknowledgements, “it could be said that the city of Lviv is the fifth main character in the book, or maybe the first.”

Since Nuremberg, we have seen continued large-scale atrocities committed against humankind. But while the war trials did not act as a deterrent to future criminals, they did spawn a long-lasting and broadly effective system of international justice for prosecuting them. Sands’s book shows us how the beliefs of Lemkin and Lauterpacht are still necessary today. It arrives at a timely juncture: just two months after the former Bosnian Serb leader Radovan Karadžić was found guilty of crimes against humanity and genocide in the 1995 massacre at Srebrenica and sentenced to 40 years in prison. As long as individuals abuse their power and influence and are arraigned on charges of wholesale torture or ethnic cleansing—what former French Minister of Foreign Affairs Laurent Fabius called with reference to Bashar al-Assad “crimes that offend the human conscience”—we will remember the groundbreaking achievements of two Jewish lawyers. 

Sands begins by explaining how in 2010 he was invited to give a lecture at Lviv University on the topic of genocide and crimes against humanity. One of his reasons for accepting was to find out more about his grandfather. He recalls visiting Leon and his wife Rita in their Paris apartment in his youth, and how they always remained tight-lipped about their past: “C’est compliqué,” Leon would say, “c’est le passé, pas important.” Back then in the 1960s, the young Sands knew only bare-bone facts about Leon, one of which was a distant birthplace, Lemberg. As it is Leon who leads the adult Sands to Lemkin and Lauterpacht, and lynchpin Lemberg, so it is Leon who Sands fleshes out first.

He learns that Leon was the youngest of four children and that at the age of ten his father and older brother died, leaving him the last man in the family. On the eve of World War I, Leon escapes the escalating violence between Poles, Ukrainians, and Jews by moving to Vienna. There he finishes his studies, starts his own business as a distiller of spirits, and meets and marries Rita. Their daughter, Ruth—Sands’s mother—is born in 1938, the year of the Anschluss. The steady rise of anti-Semitism, particularly towards Ostjuden from Galicia, reaches crisis point and soon Leon is issued with an order of expulsion. In January 1939, he arrives stateless and penniless in Paris.

From here, Leon’s tale develops unexpected twists and turns. Sands assumes Leon departs Vienna with his wife and daughter, but deeper probing reveals otherwise. Two-year-old Ruth is reunited with her father six months later and, once the Germans invade, sent into hiding outside Paris for four years. Rita stays on in Vienna until 1941 and gets out in the nick of time, the day before all exit routes are blocked and emigration is replaced by deportation. Both during and after German occupation, Leon is involved with various organizations that provide assistance to Jewish communities. One organization, the Comité Juif d’Action Sociale et de Reconstruction, grew out of the French Resistance; this fact, coupled with Leon’s false identity card, his attendance at a funeral for French resistants, and his ability to avoid the rafles, or roundups of Jews, leads Sands to suspect his grandfather had “an underground life.” 

Throughout this time, while in the public eye and in the shadows, Leon receives no news from those he left behind in Galicia. But Sands’s research gives him answers. Of the 70 or more family members that lived in Lemberg and neighboring Galician towns at the outbreak of war, Leon was the sole survivor.

At this point Sands branches off and brings in his two lawyers. Lauterpacht studies in Lemberg while pogroms rage, then, like Leon, moves to Vienna where he marries and completes a doctoral thesis on the new League of Nations. Instead of Paris, Lauterpacht heads for England where after a teaching stint in London he is elected to the prestigious chair of international law at Cambridge. Impressed with his work on war crimes, the newly appointed head of the prosecution team against German war criminals, Robert Jackson, turns to Lauterpacht for help. Lauterpacht suggests to Jackson that a new term is needed in international law that covers the scale of Nazi atrocities—“Crimes Against Humanity.” If introduced, a state would no longer be free to treat its people entirely as it wished.

Lauterpacht was not the only lawyer thinking along these lines. Lemkin, who arrived at Lwów University two years after Lauterpacht left, and who studied under the same teacher of criminal law, had been interested in the extermination of groups since the Armenian genocide in 1915. “A nation was killed,” Lemkin wrote, “and the guilty persons set free.” Later, after reading Mein Kampf, he presciently declared it a “blue-print for destruction.” He went on to practice law in Poland before being forced to flee Europe, and ended up in North Carolina and the sanctuary of Duke University. In 1944 he published a book, Axis Rule in Occupied Europe. The title may have been lackluster but he made up for it with the word he coined for the title of chapter nine, a word that would henceforth enter the legal lexicon as a means of classifying and judging the worst possible crime, the “crime of crimes”—“Genocide.”

Although Lauterpacht and Lemkin never met, the Lauterpacht reviewed Lemkin’s book for a law journal and dismissed this newfangled concept as impractical. (Sands tells us more than once that Lauterpacht was a “practical” man whereas Lemkin was an oxymoronic “practical idealist.”) Lauterpacht argued that “if one emphasizes too much that it is a crime to kill a whole people, it may weaken the conviction that it is already a crime to kill one individual.”

When the verdict was issued at Nuremberg there was mention of crimes against humanity but no reference to genocide. Lauterpacht experienced relief; Lemkin suffered “the blackest day” of his life. However, several weeks after the trial the United Nations General Assembly met and decreed that genocide was in fact a crime under international law. For the first time in history, national leaders were indicted for their systematic killing sprees.

Sands’s findings are consistently intriguing. Now and again a revelation, re-enactment or reviewed historical incident will come studded with some tiny, largely irrelevant but wholly enhancing detail: the small plaque Sands’s daughter notices on the wall of Leon’s Realschule quietly advertising that its basement was used as a Gestapo prison in 1938; the housekeeper at the dormitory for Jewish students at Lauterpacht’s university; a young woman called Paula Hitler, who was “unaware that her brother was the leader of the fast-growing National Socialist Party.”

East West Street is powerful and poignant but it is also original. Most books about Jewish relatives during the war years culminate in the Holocaust. Giorgio Bassani’s The Garden of the Finzi-Continis does, as does Elie Wiesel’s Night, and of course Anne Frank’s The Diary of a Young Girl. More recent examples include But You Did Not Come Back by Marceline Loridan-Ivens and A Brief Stop on the Road From Auschwitz by Goran Rosenberg—two memoirs of fathers who were sent to death camps, one of them perishing, the other surviving. But mercifully Leon was never sent to a camp; what’s more, his story is only one strand of Sands’s book. A more kindred spirit would be Thomas Harding’s Hanns and Rudolf, which chronicled how the author’s great-uncle helped track down the Kommandant of Auschwitz. 

Ultimately, Sands’s multifaceted book stands triumphantly alone. It even-handedly charts four separate lives and skillfully explores a beleaguered city with blurred borders. It describes the slow, tortuous process to introduce revolutionary new legal concepts and recognize new crimes. It amplifies the roar of history, dramatizes the depravity of, and the moral struggle against, what Primo Levi called the “infernal order” that is Nazism. It is a salvage operation to fill the gaps in Jewish lives, many of them prematurely cut short. It is a fact-finding mission, a gripping courtroom drama, a tale, ultimately and cathartically, of good triumphing over evil. In Sands’s pages, many of them beautifully adorned with photos, maps, letters—evidence—we see the piece-by-piece reconstruction of a lost world, and the development of ideas that would help safeguard a new one.