How can the law operate to throw a protective embrace over those at risk of serious harm?


International lawyer Philippe Sands QC delivers moving account of origins of human rights movement

07 March 2017

Philippe Sands QC gave a moving account of the origins of the human rights movement last week, told through the lens of his own family history, in a thought-provoking and deeply affecting discussion of his award-winning memoir East West Street: On the Origins of ‘Genocide’ and ‘Crimes against Humanity’.

The book colloquium, organized in collaboration with Oxford Transitional Justice Research (OTJR), was held at All Soul’s College, Oxford on 1 March, and featured Professors Dapo Akande and Stephen Humphreys, who joined Professor Sands in discussion, chaired by Daniel Franchini, convenor of OTJR.

Professor Sands, a renowned international lawyer and Professor of Law at UCL, opened the event by declaring the book to be, at its essence, about identity. Elaborating further, he said that, far from the myth of the apparent impartial, even mechanical application of justice, it is the personal family histories, experiences, and identities of individual people that has a profound influence on the development, application, and interpretation of the law.

In his book, which won the most prestigious non-fiction prize in the UK in November, Professor Sands recounts how he unearthed long-buried family secrets whilst researching the fathers of the modern human rights movement in Lviv, Poland, home to his maternal grandfather. In doing so, he discovers that the city from which his family were forced to flee from Nazi occupation and persecution was also the fount of the ground-breaking concepts of international law ‘crimes against humanity’ and ‘genocide’ that were to make their way into the Nuremberg trials decades later.

In his talk, Professor Sands posed the question confronted by the two key protagonists who battled to ensure that these concepts became cornerstones of international law – Hersch Lauterpacht and Raphael Lemkin: “How can the law operate to throw a protective embrace over those at risk of serious harm?”


How can the law operate to throw a protective embrace over those at risk of serious harm?


Both recognized that we are all individuals, also defined by our associations with wider groups, yet each developed their ideas along parallel but almost adversarial paths. While Lauterpacht, who advocated for the inclusion of ‘crimes against humanity’, developed a theory based on the fundamental precedence of the individual, Lemkin, who coined the term ‘genocide’, chose to focus his work on the group.

Professor Sands described the very personal motives behind each man’s philosophy, informed by childhood memories and adulthoods as Jews scarred by the Second World War. Lauterpacht recognized that every human being has inherent qualities that are worthy of protection in international law, and believed in the fundamental place of the individual in the international legal order. Lemkin, by contrast, thought that international law should protect the Jews living through the horrors of the War not by virtue of their inherent qualities as individuals, but because they were being persecuted by the Nazis for their membership of a particular group.

Evoking the personal loss and personal challenge that Lauterpacht contended with during the Nuremberg proceedings, Professor Sands appeared to side with his perspective, arguing that if you treat the victim as a member of a group, you replace the tyranny of the state with the tyranny of the group.

The poignancy of the personal histories of those involved was brought home by the deep interconnections between their lives and those of Professor Sands’ own family, connected as they are both geographically, through the eponymous street of the memoir’s title, and through their decision to devote their lives to the law.

“Is it pure coincidence, or something else?”, he asked, and raised the intriguing question posed by recent scientific breakthroughs that might suggest that deep family traumas may be genetically passed down, and inform the identities of, future generations.

Professor Stephen Humphreys of LSE congratulated Professor Sands on the achievement of the book and highlighted the fact that Raphael Lemkin’s entire approach to genocide was informed by the diversity and multiculturality of Mitteleuropa that he grew up emersed in, and which he sees it as a duty of the international community to work to preserve.

Professor Dapo Akande of the Faculty of Law and Director of the Oxford Institute for Ethics, Law and Armed Conflict (ELAC), explored the implications of the central legal ideas explored in the book, genocide and crimes against humanity, and posed the hypothetical question: “Would it have been preferable, historically and legally, to have pursued one route or other?”


Would it have been preferable, historically and legally, to have pursued one route [crimes against humanity] or the other [genocide]?


In the conscience and consciousness of the general public, he argued, perhaps the two terms dilute each other, since the inevitable result of such closely related but competing concepts is a type of hierarchy of terms. If this is the case, Lemkin has won the day, given the level of public consciousness of the term of genocide, and the fact that no international convention exists to encompass the broader obligations for crimes against humanity, as there is for genocide.

Professor Sands responded by recounting his ongoing efforts to disseminate the lessons that emerge from his investigation into his own past. He described recent conversations with Supreme Court judges, and the documentary he made with the son of Hans Frank, the high-ranking Nazi lawyer who was one of the key defendants at the Nuremberg, and finished with a plea to “stop teaching international law as though it is something mechanically applied”.

His efforts at intergenerational reconciliation were reinforced by his point that Lauterpacht – a Polish Jew – not only found political sanctuary in Britain for himself and his family in the face of intolerance and persecution overseas, but, remarkably, went on to be chosen by his adopted country to prepare the opening and closing speeches of the UK's chief prosecutor at the Nuremberg trials. Professor Sands closed by offering the sobering reminder that this demonstration of “generosity to strangers and an openness on the part of the UK … is an extraordinary thing, currently under threat”.


The generosity to strangers and openness of the UK is an extraordinary thing, currently under threat


If you missed Professor Sands' talk last week, a podcast of the discussion will be available to download over the next week, and Professor Sands will be returning to Oxford to speak at the Oxford Literary Festival on 26 March.

The event was convened as part of a series of discussions of books that deal with aspects of law and society, held each term. To receive invitations to future such events, and links to all our podcasts and other free resources, please subscribe to our bimonthly e-newsletter.