September 28, 2025 • 35 mins
In times of perilous transition we often tell ourselves change is not possible or events are out of control and there is nothing we can do. In such times it helps to look to history for inspiration and as an aid to help us navigate the chaos. The story of two ordinary individuals—Raphael Lemkin and Hersch Lauterpacht—shows how two men, deeply concerned with the needs of their time, separately made a conscious choice to bring about positive change and persevered until they succeeded against all the odds. Their deep commitment to justice, courage, creativity and dogged perseverance led to the creation of two international crimes: genocide and crimes against humanity. And it was their work, respectively, that laid the foundation for the Universal Declaration of Human Rights (Lauterpacht) and the crafting of the Genocide Treaty (Lemkin)
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Sovaida (00:08):
Hello and welcome to Reimagining Our World, a podcast
dedicated to envisioning abetter world and to infusing
hope that we can make theprincipled choices to build that
world.
Hello, and welcome to today'sepisode of Reimagining Our
World.
I'm delighted to be with you.
(00:29):
I'm your host, Sovaida Maani Weoften tell ourselves that change
is not possible or that we can'tdo it.
So it helps to take to heart thestatement from the popular
American historian, DavidMcCullough, who said, and you
see this here on the banner,"What History teaches, it
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teaches mainly by example.
It is an aid to navigation inperilous times." So I thought it
would be useful and helpful forus to reimagine how we could
change this world of ours thatis falling apart at the seams by
looking at history and some pastexamples for inspiration.
(01:12):
I wanted in particular tohighlight and talk about the
inspiring story of two veryordinary individuals, like you
and I, who each made a consciouschoice to bring about positive
change and to persevere untilthey succeeded in the face of
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all odds.
Their names were HerschLauterpacht and Raphael Lemkin.
Now these two men lived in theperiod of time basically during
the first World War.
So the time period that concernsus is the period between the
First World War and the SecondWorld War.
The setting is the town of Lvivin Poland at the time.
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Now Lviv at the time, at the endof the First World War was a
city in which bitterness andfratricidal hatred and conflict
between the Poles and Ukrainianscontinued to fester after the
Treaty of Versailles, which wasthe treaty that put an end to
World War I.
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So the Austria-Hungarian armythat had been reigning in that
area retreats, and Ukraine takescontrol of the city of Lviv and
declares it the short-livedcapital of West Ukrainian
People's Republic.
Now a vacuum in authority hadbeen created when the
Austria-Hungarians left, causinga violent nationalism to emerge
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and the possibility of either aPolish state coming into being
or a Ukrainian state.
What's interesting for ourpurposes is that the people
there were grappling with issuesof group identity and autonomy,
in addition to the rise ofnationalism and the emergence of
new states.
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This may sound familiar to us aswe think about what's going on
in some parts of the world.
Now both of these men,Lauterpacht and Lemkin happened
to have resided in the city ofLviv and they attended the
university there.
In fact, they both studied law.
Lauterpacht finished just beforethe end of the First World War,
and Lemkin starts immediatelyafter the end of the First World
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War.
What is instructive, and this iswhat we're going to explore
today, is that these twoindividuals chose to respond in
a particular way to thedifficulties that faced them and
their communities.
They were both deeply concernedwith the needs of the age they
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lived in, and with the welfareof both individuals and the
society as a whole.
The other thing I want tomention before we delve into
this is that they also sharedsome key traits, which I would
urge you to keep in mind.
They were both motivated by adesire for justice.
They were both courageous inthat they dared to imagine a
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better and more just world.
They were willing to persevereand leave no stone unturned
until they achieved the resultsthey wanted.
And they were both extremelycreative in reaching for ideas
that would change lives acrossthe world.
So let's see what was going onhere.
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They both saw one particularproblem, and that was the fact
that international law at thetime offered few constraints on
the majority's treatment ofminorities, and there were no
rights for individuals within astate unless the state chose to
voluntarily grant it to them, orthe state was forced to grant it
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to them.
An example of this was somethingcalled the Polish Minorities
Treaty.
So here we are again (04:59):
end of the first World War in Poland.
There were a lot of attacks onthe Jews, and it was giving rise
to concerns about a newlyindependent Poland's ability to
safeguard the minoritycommunities, the Jewish and
German minority communities.
Interestingly, it was PresidentWilson who came up with the idea
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of crafting a special treaty tolink membership to the League of
Nations, which was the precursorto the United Nations,
membership to the league forPoland, with a commitment on
Poland's part to ensure equaltreatment of minorities.
The ultimate result was thistreaty, which required the
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Polish state to protectminorities and it provided the
allies the opportunity and theentitlement to step in and
protect, as obligations ofinternational concern, those
rights, should they be flouted.
And there was also going to be anew, actually the first
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international court, thePermanent Court of International
Justice at the Hague that couldhave hearings on these cases.
Now Lauterpacht and Lemkin hadthis shared concern.
They also shared an optimisticbelief in the power of the law
to do good and to protectpeople.
And they believed that the lawneeded to change in order to
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achieve that objective.
They also agreed on the value ofboth a single human life and the
collective, the community, theimportance of preserving and
protecting the community.
However, they were also verysharply divided.
What they were sharply dividedon was on the approach to use to
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help prevent mass killing.
How could the law prevent masskilling was the big question.
Lauterpacht answer in short, wasto say, let's focus on
protecting the individual.
Lauterpacht's approach wascompletely different, and he
said, no, the primary focusshould be on protecting the
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group.
Now, unfortunately, to someextent, each believed that their
approach was the correct one.
And it turns out with thebenefit of hindsight, that both
were important.
And here we again relearn thelesson that truth is really a
multifaceted gem.
And we see things from differentangles.
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We see this gem from differentangles, and we see different
colors in it.
And instead of saying to eachother,"No, you are wrong.
I'm right." It might serve usbetter if we stood in each
other's shoes and said,"You knowwhat?
Both of these ideas are reallyinteresting and important, and
they can both serve ourcommunities." And as we'll see
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going forward, each of theseideas in its own right became
the embodiment of a new crime ininternational law.
One is the crime againsthumanity, and the other was
genocide.
So this was the genesis of bothof these crimes that we talk
about today, and they both didmore than any other person to
create the modern system ofinternational justice,
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especially the modern law ofhuman rights.
I want to pause here a minute tosay that I've culled a lot of
this material about their livesand the story of the evolution
of crimes against humanity andgenocide from a wonderful book
written by Philippe Sands, whois an international lawyer, a
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barrister, practices before theHague and his book is an
interesting blend of a personalfamily story and the lives of
these two individuals.
It's called"East West," so Ihighly commend it to you.
Okay, let's get back to what wewere talking about.
Now let's look at Lauterpachtand what his style was and how
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he ended up creating, beingessentially, the father of the
new crime in International lawof crimes against humanity.
Lauterpacht was an emotionallydetached individual and yet very
practical.
His focus was on the protectionof the individual.
In fact, he believed that thewell-being of an individual is
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the ultimate object of all law.
And that the individual humanbeing is the ultimate unit of
all law.
He abhorred all forms ofnationalism, and his worry was
that a focus on groups asopposed to individuals would
exacerbate the problem of usversus them.
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Very interesting approach.
He believed that focusing on theprotection of the groups would
undermine the protection ofindividuals, and argued that
therefore protection of groupsshouldn't be the primary focus.
And again, his fear was thatfocusing on protection of groups
by creating a crime of genocide,as Lemkin wanted we'll see in a
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couple of minutes, wouldreinforce the latent instincts
of tribalism and perhaps enhancethe sense of us versus them
pitting one group against theother and exacerbating the
problem that we're trying toavoid.
Now he was influenced by a legalphilosopher-- for those of you
who are interested, Hans Kelsen,who was the individual who had
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helped shape Austria'srevolutionary new constitution,
which basically held that allindividuals within a state had
inalienable constitutionalrights and they had the right to
go before a constitutionalcourt, of which he was a member,
to enforce those rights.
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Lauterpacht believed that statesshould no longer be free to act
as they wished and to treatcitizens as they wanted, killing
maiming, destroying,disappearing them, so on.
And he believed in thepossibility of reigning in those
powers of the state.
He was motivated by justice andthe relief of suffering
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according to one of hissupervisors for his third PhD
thesis.
He was a brainy fellow.
And this supervisor said he wasa man without a trace of the
political agitator in histemperament.
So that emotional detachment waskey to his success.
He wrote a book on theinternational bill of rights for
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the individual.
And in it he basically called onall governments to embrace this
revolutionary new idea of a newinternational law to protect the
fundamental rights of all humanbeings.
He argued that this law shouldbe enforced not only by state
authorities, but byinternational actors.
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Now the Way Lauterpacht wentabout introducing this idea for
a new crime, the Crimes againstHumanity, the way he went about
this teaches us a lot of lessonson persistence and tireless
effort, lessons that we would dowell to imbibe and implement
today as we try to tackle thechallenges that face our
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societies today.
I'll give you a taste here.
So he's introduced at some pointto Robert Jackson, who was
Franklin Roosevelt's AttorneyGeneral, and he ends up
basically befriending RobertJackson and offering his
services and helping him findways for the United States to
help Britain in World War IIwithout violating the rules on
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neutrality.
And he continues to feed ideasto this Attorney General of the
United States.
And some of these ideas end upbeing used in the Lend-Lease
Bill, which as we know wascritical to winning the war.
In 1941, he then meets Jackson'ssuccessor as Attorney General, a
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gentleman called Francis Biddle,and starts advising him on how
America can attack Germansubmarines legally.
Meanwhile, he also continues asan academic lecturing on his
idea of a new bill of rights andwanting to put the individual at
the heart of a new legal order.
And so he's wearing these twohats.
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He's working with the Americans,feeding them ideas, helping them
out, actually being veryhelpful.
And eventually he starts passingideas on to the war crimes
committee that was created thatlater became the UN War Crimes
Commission was created by theAllied governments to basically
gather materials on atrocitiesthat are being committed during
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the war.
He gets offered a seat on thenew British war crimes executive
and then the British AttorneyGeneral Shawcross asks him to
help Britain prepare the casefor a tribunal that the allies
decide to set up to prosecuteGerman officials and individuals
who are acting on behalf of thestate and were acting
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criminally.
Now the allies were havingtrouble as to how to craft the
charter of this militarytribunal that's called the
Nuremberg Charter.
You've probably heard of theNuremberg Trials, which were the
trials in which these 24defendants were prosecuted, but
they were having troublefiguring out what crimes should
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we be prosecuting them for?
This had never happened in thehistory of humanity, that
nations would come together andcreate this court to prosecute
individuals who are actingbasically on behalf of states
and acting criminally.
So Lauterpacht again helps themand he offers verbiage for this
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charter.
And as he does this he alsomanages to convince them to put
in crimes against humanity as acrime, both within the Nuremberg
Charter and then later as acrime within the indictment
saying what these defendants areactually gonna be charged with.
So there are four counts in theindictment and one of the counts
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ends up being crimes againsthumanity.
Now let's look by contrast atwhat Lemkin is doing.
While Lauterpacht is concernedwith the protection of the
individual, Lemkin is moreconcerned, as we said, with the
protection of the group, and hebelieves that the existing rules
are inadequate and he actuallywants a global treaty to protect
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against the extermination ofgroups.
So he does a couple of reallyinteresting things that, again,
I find fascinating and I thinkwe can learn from.
First of all, he identifies apattern of behavior that the
Germans are engaged in, and hecoins a new term to describe
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this pattern of behavior, andthat term is genocide.
So this word that we bandy aboutso liberally these days was
actually coined by RaphaelLemkin.
His thought was newcircumstances require a new
idea, which in turn demands anew word.
And later he said this new wordand this new idea deserve and
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demand a global treaty toprotect against the
extermination of groups and tobe used in order to punish
perpetrators before any court inthe world.
That was his idea.
He said, look, we have to facethe reality that some people are
hated just because they belongto a group, whether it's a
religious group or an ethnicgroup, or a national group or
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whatever it is, and they belongto that group that happens to be
hated at that time.
Therefore those groups need tobe protected.
And his counter argument toLauterpacht, as Philippe lays
out very well in his book, isthat an excessive focus on
individuals is naive and ignoresthe reality that very often
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individuals are targetedprecisely because they're
members of a particular groupand not because of their
individual qualities.
So focus on groups in Lemkin'smind was the practical approach,
whereas Lauterpacht thought hehad the practical approach.
Lemkin also believed that propercriminal laws, if crafted
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correctly, could actuallyprevent atrocities.
And he also draws on an ideathat had been circulating, that
had been proposed by somebodyelse the idea of universal
jurisdiction, a principle thatnational courts anywhere in the
world should be able to tryperpetrators of the worst
serious crimes.
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So how does Lemkin proceed?
He starts by writing a pamphletwith some of his ideas in them,
and he's very dogged and verypersistent.
The pamphlet doesn't really takehold, but he's undeterred, so he
starts creating his ownopportunities.
If other people aren't gonnagive them opportunities, he's
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gonna create his own.
And he starts, he comes up withthis idea that he can amass
evidence of irrefutable crimesbeing conducted by the Germans,
wherever they go.
And he thinks if I can onlyamass documents and create a
paper trail, it'll be likeputting pieces of a jigsaw
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puzzle together.
I'll be able to demonstrate thatwherever the Germans go and as
they take over increasing areas,their behavior when added
together is evidence of aconcentrated plot.
So each decree that they issuestanding alone might not signify
anything or may not make itapparent what they're really up
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to.
But when you take the totalityinto account, then you can see a
pattern.
So this is the mission that hesets for himself.
Meanwhile, he gets a teachingposition in North Carolina and
he continues to ask people inall these territories that are
taken over by the Germans, asthe decrees are issued, please
send me copies of these decrees.
And he's starting to figure outbasically what the pattern is
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here.
He identifies certain steps.
So very interesting.
He says the first step that theyseem to engage in is
denationalization.
So they basically take away thenationality of these targeted
groups, individuals in targetedgroups, making them stateless
and therefore limiting theability of the law to protect
them.
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The second thing they do is theydehumanize them, dehumanization,
which means they actually removewhat legal rights remain from
the targeted group.
The third step is he says theykill the nation in a spiritual
and cultural sense.
So this gives you an idea of thekind of steps that he's
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identifying and demonstrating.
This gives us a picture of whatGermany was really trying to do.
So word gets out on his work, onthe decrees, and he's offered a
consultancy in Washington, DC,at the Board of Economic
Warfare.
Now he's in a place where he'sin touch with the upper echelons
of society.
He has access to the vicePresident of the United States
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and eventually also through himto the President Franklin
Roosevelt.
So while Lauterpacht is writinghis book on the rights of man,
Lemkin is also writing a bookcalled Axis Rule." In chapter
nine, he basically creates thisnew word that we talked about,
genocide.
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And he describes what it meansand he defines it.
Now Lemkin is extremelypersistent.
He resorts to whatever tacticsin order to get this crime seen
and recognized and introduced,if he can, into the Nuremberg
Charter and then have it be oneof the charges with which the
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defendants are indicted.
And he essentially ends upmaking a nuisance of himself.
Apparently, he sets up informalsessions with different
organizations and proposes hisideas.
He engages when all else failsin a letter writing campaign to
Eleanor Roosevelt, who'd newlybeen appointed the head of the
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UN Committee on Human Rights.
He writes to Anne McCormick, whowas on the New York Times
Editorial Board, and he evenwrites to the UN Secretary
General, the UN having beenrecently created.
He even hounds the prosecutionlawyers at the Nuremberg Trials.
He keeps encouraging Jackson,who is now at this point, a very
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important person having beenAttorney General, he became
member of the Supreme Court ofthe US, and then President
Truman taps him to be in chargeof the Nuremberg Trials.
Lemkin keeps saying to him,"Youreally got to read my book." So
eventually Jackson borrows thisbook and it stays in his office.
It's not returned for a year.
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And we know then that he,Jackson, personally makes sure
that this crime, the crime ofgenocide, is actually included
in the indictment.
It doesn't get into the Charter,but it does get into the
indictment.
Something else I'd like to talkabout briefly and highlight is
Lempkin's motivation.
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He was always motivated by adesire for justice.
When he was 11 years old,apparently, he had asked his
mother why it was that when theRomans threw the Christians to
the lions, the police did notintervene.
In 1915, he was very affected bythe mass murder of 1.2 million
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Armenians for no other reasonthan that they were Christian.
Later in 1921, there was anothertrial that deeply affected him
in Berlin, the trial of a youngArmenian called Ian, who had
assassinated the former Ottomangovernment minister, Talaat
Pasha.
Interestingly, in that trial,the jury was directed to set the
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man free if they found that heeffectively had no free will.
In other words, because hispeople had been slaughtered, 1.2
million Armenians had beenslaughtered willy-nilly just
'cause they were Christian, theidea was that he may have lost
his ability to have free willand therefore should not be held
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guilty of a crime.
And there was a second trial in1918 in which there was a
similar dilemma.
Somebody basically taking thelaw into their own hands because
their people had been killed.
This, at this time, it was aJewish watchmaker who shot
president of the 1918 WestUkraine.
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People's Republic dead in Parisbecause he alleged that this man
had ordered the murder of Jewsin Russia.
The dilemma the court had wasthat they didn't want to punish
him because he had suffered somuch, but at the same time, they
couldn't sanction him taking thelaw into his own hands.
So they came up with a sort ofan elegant solution, which was
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to declare him insane and thenset him free.
But you can see that there arereal problems here, and these
are the kinds of problems thatLemkin is wrestling with and
saying, okay, we really need tocome up with crimes and be able
to bring these individuals whocommit mass atrocities to
justice so that people don'tfind themselves in these very
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awkward situations.
So Lempkin and Lauterpacht areall working against a backdrop.
What is that backdrop?
That is the end of World War IInow, and the decision by the
allies before the end of the warin 1942 to use criminal law to
punish those guilty ofcommitting atrocities during the
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war.
So in 1942, nine Europeangovernments in exile meet in
London and they decide on anumber of things that are going
to happen after the war is done,including punishing the those
guilty of committing theseatrocities.
And they set up a commission onwar crimes to collect the
information that they'll needand the evidence.
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That's the UN War CrimesCommission that we talked about.
Then in February 1945, at theend of Second World War,
Churchill, Roosevelt and Stalinmeet in Yalta to take decisions
about how the German leaders aregoing to be prosecuted, and they
decide to create theinternational military tribunal.
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They agree that the tribunalwill exercise jurisdiction over
individuals as opposed tostates, and then they come up
with a list of crimes.
And we talked about howLauterpacht managed to get his
idea of crimes against humanityinserted as one of those crimes
in the charter of the Nurembergtrials.
And unfortunately, Lemkin doesnot get genocide included at the
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time, but the overarching ideahere for both these men is that
international law should notjust be about law between
states, but rather the law ofmankind, of humanity.
There are many successes that wesee as a result of this story,
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and I am just going to highlighta couple of them for you.
For the first time in humanhistory, as a result of the work
of these two men, and of courseas the result of the work of the
allies, the leaders of a stateare put on trial before an
international court for crimesagainst humanity and genocide,
both of them new crimes ininternational law, so both men
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get their wishes.
The other success is, that thecreation of this tribunal
demonstrates and is illustrativeof the triumph of justice over
vengeance.
I wanted to share this quotewith you from Jackson in his
closing argument.
He says,"That four great nationsflushed with victory--so these
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are the allies-- flushed withvictory and stung with injury
stay the hand of vengeance, andvoluntarily submit their captive
enemies to the judgment of thelaw is one of the most
significant contributes thatpower has ever paid to reason."
So again, a reflection abouttoday and times when emotions
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run high, and we all want toinflict vengeance on each other
because we feel that our rightshave been violated.
It would behoove us to rememberthat a civilized humanity
reaches for the rule of law anduses it as the means to bring
about justice.
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So"one of the most significanttributes that power has ever
paid to reason." I love thatphrase.
Another incredible successflowing from the work of these
two men is that after the trialends, a new United Nations has
also been created, so all ofthese happenings are happening
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at the same time in 1945, the UNGeneral Assembly meets a few
weeks after the trial ends andpasses a resolution, Resolution
95, that lays the path for a newinternational bill of rights.
It's first time in humanhistory.
Which eventually becomes what weknow as the Universal
Declaration of Human Rights thatwas adopted in December 1948.
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So it's really Lauterpacht'swork that leads to the Universal
Declaration of Human Rights.
Wow.
What a legacy he has left.
On Lemkin's side, Lemkin workedreally hard and even though his
crime of genocide was notincluded in the Nuremberg
Charter and was not recognizedby the tribunal as a crime under
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international law, even thoughthey put it in in the indictment
under the heading of war crimes,the UN General Assembly overrode
the judgment of the court inthis respect and said, no, we
recognize that genocide is acrime under international law,
and they declared it to be andLemkin was exhilarated.
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And he sets about then doingwhat he believed should then
happen, which was drafting aconvention on genocide.
And that also gets adopted inDecember 1948, the Universal
Declaration of Human Rights andthe Genocide Convention get
adopted one day apart.
So both of these men's workbasically yields incredible
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fruit that we all benefit from.
And then of course, 50 yearslater, the International
Criminal Court comes into being.
And that's a whole nother story.
So some of you may think,"Yeahthings aren't perfect.
Look at look at our world.
And there are still stickingpoints." Yes, there is still
more to come.
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We are not done yet.
And some of these things thatthe challenges that need to be
become, include that theuniversal Declaration of human
Rights is not binding.
So the Genocide Convention isbinding as a treaty, but the
Universal Declaration of HumanRights is in some sense
aspirational and not legallybinding.
Also, until now, we don't have acorollary treaty like the
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Genocide Treaty for the Crime ofGenocide; we don't have a treaty
for crimes against humanity.
However, the good news is thatsince 2015, the UN International
Law Commission has been workingon drafting such a treaty and
they're still drafting on it.
One of the problems thatPhilippe Sands points to with
these two crimes is that aninformal hierarchy seems to have
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emerged that genocide is somehowa more salient crime than crimes
against humanity, that genocideis the crime of crimes.
And it's a very interestingapproach to take because killing
anybody is untenable andshouldn't happen.
And is it really worse to kill awhole group of people on account
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of the fact that they'reindividuals or kill a whole
group of people, the same numberor fewer, but because you're
trying to destroy the group?
Can one really say that one isworse than the other?
You're still destroying largenumbers of people for no good
reason.
It shouldn't be happening.
So really in international law,these two crimes are parallel to
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each other.
There is no hierarchy, butsomehow in popular parlance and
in our society today, peopleseem to believe that, oh, we
must convict them of genocide orelse it doesn't count.
And what's sad about that isthat we then try to force
bringing people to trial on thegrounds of genocide.
But the bar, the standard toprove genocide, is very high.
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That's another one of theproblems.
So very often those attemptsfail, whereas if we had maybe
tried to convict them of crimesagainst humanity we would get
the conviction and they would beheld accountable and they would
be punished.
And at the end of the day, asPhilippe Sands argues, and I
must say I completely agree withhim, isn't that what really
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matters?
That people be brought toaccount, not what the label is.
And the last thing that Philippehighlights, which I want to
share with you,'cause I thinkit's important, is that genocide
does have a component ofnational identity to it.
People get very vested in the,oh, my people have been
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subjected to genocide.
But it doesn't contribute to theresolution of historical
disputes or make the masskillings any less frequent.
And in fact, it does sometimesexacerbate that sense of us
versus them.
Look at what their group did tomy group, which had been
Lauterpacht's concern.
Okay, so in conclusion we cantoday, given everything we're
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faced with, we can drawinspiration and hope from the
work of these two figures,Hersch Lauterpacht and Raphael
Lemkin.
As we become increasinglyconcerned with the needs of the
age we're living in, we can lookto what they did and draw
lessons.
We can reach for and harnesssome of the same qualities they
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evinced, the qualities ofstriving for justice, courage,
creativity, and perseverance.
And close again with the wordsof David McCullough who says
that history shows that times ofchange are the times when we are
most likely to learn.
So as we live in this time offerment and difficulty and
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turbulence and transition andchaos, this is precisely the
time when we are probably mostready to make the next shift in
our evolution, learn some newlessons, and come up with a
different way of living andmaking this world a better
place.
Okay.
Thank you very much.
(34:24):
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Reimagining Our World are nowavailable on your favorite
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You can still watch them orlisten to them on the CPGG
YouTube channel.
(34:45):
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they're taking walks or drivingor doing housework or whatever,
gardening, on their favoritepodcast channel.
That's all for this episode ofReimagining Our World.
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If you liked this episode,please help us to get the word
(35:06):
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the Center for Peace and GlobalGovernance, CPGG.
Hello and welcome to Reimagining Our World, a podcast
dedicated to envisioning abetter world and to infusing
hope that we can make theprincipled choices to build that
world.
Hello, and welcome to today'sepisode of Reimagining Our
World.
I'm delighted to be with you.
(00:29):
I'm your host, Sovaida Maani Weoften tell ourselves that change
is not possible or that we can'tdo it.
So it helps to take to heart thestatement from the popular
American historian, DavidMcCullough, who said, and you
see this here on the banner,"What History teaches, it
(00:49):
teaches mainly by example.
It is an aid to navigation inperilous times." So I thought it
would be useful and helpful forus to reimagine how we could
change this world of ours thatis falling apart at the seams by
looking at history and some pastexamples for inspiration.
(01:12):
I wanted in particular tohighlight and talk about the
inspiring story of two veryordinary individuals, like you
and I, who each made a consciouschoice to bring about positive
change and to persevere untilthey succeeded in the face of
(01:32):
all odds.
Their names were HerschLauterpacht and Raphael Lemkin.
Now these two men lived in theperiod of time basically during
the first World War.
So the time period that concernsus is the period between the
First World War and the SecondWorld War.
The setting is the town of Lvivin Poland at the time.
(01:56):
Now Lviv at the time, at the endof the First World War was a
city in which bitterness andfratricidal hatred and conflict
between the Poles and Ukrainianscontinued to fester after the
Treaty of Versailles, which wasthe treaty that put an end to
World War I.
(02:17):
So the Austria-Hungarian armythat had been reigning in that
area retreats, and Ukraine takescontrol of the city of Lviv and
declares it the short-livedcapital of West Ukrainian
People's Republic.
Now a vacuum in authority hadbeen created when the
Austria-Hungarians left, causinga violent nationalism to emerge
(02:40):
and the possibility of either aPolish state coming into being
or a Ukrainian state.
What's interesting for ourpurposes is that the people
there were grappling with issuesof group identity and autonomy,
in addition to the rise ofnationalism and the emergence of
new states.
(03:00):
This may sound familiar to us aswe think about what's going on
in some parts of the world.
Now both of these men,Lauterpacht and Lemkin happened
to have resided in the city ofLviv and they attended the
university there.
In fact, they both studied law.
Lauterpacht finished just beforethe end of the First World War,
and Lemkin starts immediatelyafter the end of the First World
(03:23):
War.
What is instructive, and this iswhat we're going to explore
today, is that these twoindividuals chose to respond in
a particular way to thedifficulties that faced them and
their communities.
They were both deeply concernedwith the needs of the age they
(03:43):
lived in, and with the welfareof both individuals and the
society as a whole.
The other thing I want tomention before we delve into
this is that they also sharedsome key traits, which I would
urge you to keep in mind.
They were both motivated by adesire for justice.
They were both courageous inthat they dared to imagine a
(04:08):
better and more just world.
They were willing to persevereand leave no stone unturned
until they achieved the resultsthey wanted.
And they were both extremelycreative in reaching for ideas
that would change lives acrossthe world.
So let's see what was going onhere.
(04:31):
They both saw one particularproblem, and that was the fact
that international law at thetime offered few constraints on
the majority's treatment ofminorities, and there were no
rights for individuals within astate unless the state chose to
voluntarily grant it to them, orthe state was forced to grant it
(04:53):
to them.
An example of this was somethingcalled the Polish Minorities
Treaty.
So here we are again (04:59):
end of the first World War in Poland.
There were a lot of attacks onthe Jews, and it was giving rise
to concerns about a newlyindependent Poland's ability to
safeguard the minoritycommunities, the Jewish and
German minority communities.
Interestingly, it was PresidentWilson who came up with the idea
(05:21):
of crafting a special treaty tolink membership to the League of
Nations, which was the precursorto the United Nations,
membership to the league forPoland, with a commitment on
Poland's part to ensure equaltreatment of minorities.
The ultimate result was thistreaty, which required the
(05:42):
Polish state to protectminorities and it provided the
allies the opportunity and theentitlement to step in and
protect, as obligations ofinternational concern, those
rights, should they be flouted.
And there was also going to be anew, actually the first
(06:04):
international court, thePermanent Court of International
Justice at the Hague that couldhave hearings on these cases.
Now Lauterpacht and Lemkin hadthis shared concern.
They also shared an optimisticbelief in the power of the law
to do good and to protectpeople.
And they believed that the lawneeded to change in order to
(06:27):
achieve that objective.
They also agreed on the value ofboth a single human life and the
collective, the community, theimportance of preserving and
protecting the community.
However, they were also verysharply divided.
What they were sharply dividedon was on the approach to use to
(06:49):
help prevent mass killing.
How could the law prevent masskilling was the big question.
Lauterpacht answer in short, wasto say, let's focus on
protecting the individual.
Lauterpacht's approach wascompletely different, and he
said, no, the primary focusshould be on protecting the
(07:10):
group.
Now, unfortunately, to someextent, each believed that their
approach was the correct one.
And it turns out with thebenefit of hindsight, that both
were important.
And here we again relearn thelesson that truth is really a
multifaceted gem.
And we see things from differentangles.
(07:32):
We see this gem from differentangles, and we see different
colors in it.
And instead of saying to eachother,"No, you are wrong.
I'm right." It might serve usbetter if we stood in each
other's shoes and said,"You knowwhat?
Both of these ideas are reallyinteresting and important, and
they can both serve ourcommunities." And as we'll see
(07:53):
going forward, each of theseideas in its own right became
the embodiment of a new crime ininternational law.
One is the crime againsthumanity, and the other was
genocide.
So this was the genesis of bothof these crimes that we talk
about today, and they both didmore than any other person to
create the modern system ofinternational justice,
(08:16):
especially the modern law ofhuman rights.
I want to pause here a minute tosay that I've culled a lot of
this material about their livesand the story of the evolution
of crimes against humanity andgenocide from a wonderful book
written by Philippe Sands, whois an international lawyer, a
(08:37):
barrister, practices before theHague and his book is an
interesting blend of a personalfamily story and the lives of
these two individuals.
It's called"East West," so Ihighly commend it to you.
Okay, let's get back to what wewere talking about.
Now let's look at Lauterpachtand what his style was and how
(08:58):
he ended up creating, beingessentially, the father of the
new crime in International lawof crimes against humanity.
Lauterpacht was an emotionallydetached individual and yet very
practical.
His focus was on the protectionof the individual.
In fact, he believed that thewell-being of an individual is
(09:21):
the ultimate object of all law.
And that the individual humanbeing is the ultimate unit of
all law.
He abhorred all forms ofnationalism, and his worry was
that a focus on groups asopposed to individuals would
exacerbate the problem of usversus them.
(09:42):
Very interesting approach.
He believed that focusing on theprotection of the groups would
undermine the protection ofindividuals, and argued that
therefore protection of groupsshouldn't be the primary focus.
And again, his fear was thatfocusing on protection of groups
by creating a crime of genocide,as Lemkin wanted we'll see in a
(10:05):
couple of minutes, wouldreinforce the latent instincts
of tribalism and perhaps enhancethe sense of us versus them
pitting one group against theother and exacerbating the
problem that we're trying toavoid.
Now he was influenced by a legalphilosopher-- for those of you
who are interested, Hans Kelsen,who was the individual who had
(10:27):
helped shape Austria'srevolutionary new constitution,
which basically held that allindividuals within a state had
inalienable constitutionalrights and they had the right to
go before a constitutionalcourt, of which he was a member,
to enforce those rights.
(10:49):
Lauterpacht believed that statesshould no longer be free to act
as they wished and to treatcitizens as they wanted, killing
maiming, destroying,disappearing them, so on.
And he believed in thepossibility of reigning in those
powers of the state.
He was motivated by justice andthe relief of suffering
(11:10):
according to one of hissupervisors for his third PhD
thesis.
He was a brainy fellow.
And this supervisor said he wasa man without a trace of the
political agitator in histemperament.
So that emotional detachment waskey to his success.
He wrote a book on theinternational bill of rights for
(11:32):
the individual.
And in it he basically called onall governments to embrace this
revolutionary new idea of a newinternational law to protect the
fundamental rights of all humanbeings.
He argued that this law shouldbe enforced not only by state
authorities, but byinternational actors.
(11:53):
Now the Way Lauterpacht wentabout introducing this idea for
a new crime, the Crimes againstHumanity, the way he went about
this teaches us a lot of lessonson persistence and tireless
effort, lessons that we would dowell to imbibe and implement
today as we try to tackle thechallenges that face our
(12:16):
societies today.
I'll give you a taste here.
So he's introduced at some pointto Robert Jackson, who was
Franklin Roosevelt's AttorneyGeneral, and he ends up
basically befriending RobertJackson and offering his
services and helping him findways for the United States to
help Britain in World War IIwithout violating the rules on
(12:40):
neutrality.
And he continues to feed ideasto this Attorney General of the
United States.
And some of these ideas end upbeing used in the Lend-Lease
Bill, which as we know wascritical to winning the war.
In 1941, he then meets Jackson'ssuccessor as Attorney General, a
(13:03):
gentleman called Francis Biddle,and starts advising him on how
America can attack Germansubmarines legally.
Meanwhile, he also continues asan academic lecturing on his
idea of a new bill of rights andwanting to put the individual at
the heart of a new legal order.
And so he's wearing these twohats.
(13:24):
He's working with the Americans,feeding them ideas, helping them
out, actually being veryhelpful.
And eventually he starts passingideas on to the war crimes
committee that was created thatlater became the UN War Crimes
Commission was created by theAllied governments to basically
gather materials on atrocitiesthat are being committed during
(13:46):
the war.
He gets offered a seat on thenew British war crimes executive
and then the British AttorneyGeneral Shawcross asks him to
help Britain prepare the casefor a tribunal that the allies
decide to set up to prosecuteGerman officials and individuals
who are acting on behalf of thestate and were acting
(14:11):
criminally.
Now the allies were havingtrouble as to how to craft the
charter of this militarytribunal that's called the
Nuremberg Charter.
You've probably heard of theNuremberg Trials, which were the
trials in which these 24defendants were prosecuted, but
they were having troublefiguring out what crimes should
(14:31):
we be prosecuting them for?
This had never happened in thehistory of humanity, that
nations would come together andcreate this court to prosecute
individuals who are actingbasically on behalf of states
and acting criminally.
So Lauterpacht again helps themand he offers verbiage for this
(14:52):
charter.
And as he does this he alsomanages to convince them to put
in crimes against humanity as acrime, both within the Nuremberg
Charter and then later as acrime within the indictment
saying what these defendants areactually gonna be charged with.
So there are four counts in theindictment and one of the counts
(15:13):
ends up being crimes againsthumanity.
Now let's look by contrast atwhat Lemkin is doing.
While Lauterpacht is concernedwith the protection of the
individual, Lemkin is moreconcerned, as we said, with the
protection of the group, and hebelieves that the existing rules
are inadequate and he actuallywants a global treaty to protect
(15:34):
against the extermination ofgroups.
So he does a couple of reallyinteresting things that, again,
I find fascinating and I thinkwe can learn from.
First of all, he identifies apattern of behavior that the
Germans are engaged in, and hecoins a new term to describe
(15:55):
this pattern of behavior, andthat term is genocide.
So this word that we bandy aboutso liberally these days was
actually coined by RaphaelLemkin.
His thought was newcircumstances require a new
idea, which in turn demands anew word.
And later he said this new wordand this new idea deserve and
(16:18):
demand a global treaty toprotect against the
extermination of groups and tobe used in order to punish
perpetrators before any court inthe world.
That was his idea.
He said, look, we have to facethe reality that some people are
hated just because they belongto a group, whether it's a
religious group or an ethnicgroup, or a national group or
(16:41):
whatever it is, and they belongto that group that happens to be
hated at that time.
Therefore those groups need tobe protected.
And his counter argument toLauterpacht, as Philippe lays
out very well in his book, isthat an excessive focus on
individuals is naive and ignoresthe reality that very often
(17:06):
individuals are targetedprecisely because they're
members of a particular groupand not because of their
individual qualities.
So focus on groups in Lemkin'smind was the practical approach,
whereas Lauterpacht thought hehad the practical approach.
Lemkin also believed that propercriminal laws, if crafted
(17:27):
correctly, could actuallyprevent atrocities.
And he also draws on an ideathat had been circulating, that
had been proposed by somebodyelse the idea of universal
jurisdiction, a principle thatnational courts anywhere in the
world should be able to tryperpetrators of the worst
serious crimes.
(17:48):
So how does Lemkin proceed?
He starts by writing a pamphletwith some of his ideas in them,
and he's very dogged and verypersistent.
The pamphlet doesn't really takehold, but he's undeterred, so he
starts creating his ownopportunities.
If other people aren't gonnagive them opportunities, he's
(18:10):
gonna create his own.
And he starts, he comes up withthis idea that he can amass
evidence of irrefutable crimesbeing conducted by the Germans,
wherever they go.
And he thinks if I can onlyamass documents and create a
paper trail, it'll be likeputting pieces of a jigsaw
(18:32):
puzzle together.
I'll be able to demonstrate thatwherever the Germans go and as
they take over increasing areas,their behavior when added
together is evidence of aconcentrated plot.
So each decree that they issuestanding alone might not signify
anything or may not make itapparent what they're really up
(18:55):
to.
But when you take the totalityinto account, then you can see a
pattern.
So this is the mission that hesets for himself.
Meanwhile, he gets a teachingposition in North Carolina and
he continues to ask people inall these territories that are
taken over by the Germans, asthe decrees are issued, please
send me copies of these decrees.
And he's starting to figure outbasically what the pattern is
(19:18):
here.
He identifies certain steps.
So very interesting.
He says the first step that theyseem to engage in is
denationalization.
So they basically take away thenationality of these targeted
groups, individuals in targetedgroups, making them stateless
and therefore limiting theability of the law to protect
them.
(19:39):
The second thing they do is theydehumanize them, dehumanization,
which means they actually removewhat legal rights remain from
the targeted group.
The third step is he says theykill the nation in a spiritual
and cultural sense.
So this gives you an idea of thekind of steps that he's
(20:00):
identifying and demonstrating.
This gives us a picture of whatGermany was really trying to do.
So word gets out on his work, onthe decrees, and he's offered a
consultancy in Washington, DC,at the Board of Economic
Warfare.
Now he's in a place where he'sin touch with the upper echelons
of society.
He has access to the vicePresident of the United States
(20:23):
and eventually also through himto the President Franklin
Roosevelt.
So while Lauterpacht is writinghis book on the rights of man,
Lemkin is also writing a bookcalled Axis Rule." In chapter
nine, he basically creates thisnew word that we talked about,
genocide.
(20:43):
And he describes what it meansand he defines it.
Now Lemkin is extremelypersistent.
He resorts to whatever tacticsin order to get this crime seen
and recognized and introduced,if he can, into the Nuremberg
Charter and then have it be oneof the charges with which the
(21:04):
defendants are indicted.
And he essentially ends upmaking a nuisance of himself.
Apparently, he sets up informalsessions with different
organizations and proposes hisideas.
He engages when all else failsin a letter writing campaign to
Eleanor Roosevelt, who'd newlybeen appointed the head of the
(21:24):
UN Committee on Human Rights.
He writes to Anne McCormick, whowas on the New York Times
Editorial Board, and he evenwrites to the UN Secretary
General, the UN having beenrecently created.
He even hounds the prosecutionlawyers at the Nuremberg Trials.
He keeps encouraging Jackson,who is now at this point, a very
(21:48):
important person having beenAttorney General, he became
member of the Supreme Court ofthe US, and then President
Truman taps him to be in chargeof the Nuremberg Trials.
Lemkin keeps saying to him,"Youreally got to read my book." So
eventually Jackson borrows thisbook and it stays in his office.
It's not returned for a year.
(22:09):
And we know then that he,Jackson, personally makes sure
that this crime, the crime ofgenocide, is actually included
in the indictment.
It doesn't get into the Charter,but it does get into the
indictment.
Something else I'd like to talkabout briefly and highlight is
Lempkin's motivation.
(22:30):
He was always motivated by adesire for justice.
When he was 11 years old,apparently, he had asked his
mother why it was that when theRomans threw the Christians to
the lions, the police did notintervene.
In 1915, he was very affected bythe mass murder of 1.2 million
(22:51):
Armenians for no other reasonthan that they were Christian.
Later in 1921, there was anothertrial that deeply affected him
in Berlin, the trial of a youngArmenian called Ian, who had
assassinated the former Ottomangovernment minister, Talaat
Pasha.
Interestingly, in that trial,the jury was directed to set the
(23:14):
man free if they found that heeffectively had no free will.
In other words, because hispeople had been slaughtered, 1.2
million Armenians had beenslaughtered willy-nilly just
'cause they were Christian, theidea was that he may have lost
his ability to have free willand therefore should not be held
(23:35):
guilty of a crime.
And there was a second trial in1918 in which there was a
similar dilemma.
Somebody basically taking thelaw into their own hands because
their people had been killed.
This, at this time, it was aJewish watchmaker who shot
president of the 1918 WestUkraine.
(23:56):
People's Republic dead in Parisbecause he alleged that this man
had ordered the murder of Jewsin Russia.
The dilemma the court had wasthat they didn't want to punish
him because he had suffered somuch, but at the same time, they
couldn't sanction him taking thelaw into his own hands.
So they came up with a sort ofan elegant solution, which was
(24:17):
to declare him insane and thenset him free.
But you can see that there arereal problems here, and these
are the kinds of problems thatLemkin is wrestling with and
saying, okay, we really need tocome up with crimes and be able
to bring these individuals whocommit mass atrocities to
justice so that people don'tfind themselves in these very
(24:38):
awkward situations.
So Lempkin and Lauterpacht areall working against a backdrop.
What is that backdrop?
That is the end of World War IInow, and the decision by the
allies before the end of the warin 1942 to use criminal law to
punish those guilty ofcommitting atrocities during the
(25:00):
war.
So in 1942, nine Europeangovernments in exile meet in
London and they decide on anumber of things that are going
to happen after the war is done,including punishing the those
guilty of committing theseatrocities.
And they set up a commission onwar crimes to collect the
information that they'll needand the evidence.
(25:22):
That's the UN War CrimesCommission that we talked about.
Then in February 1945, at theend of Second World War,
Churchill, Roosevelt and Stalinmeet in Yalta to take decisions
about how the German leaders aregoing to be prosecuted, and they
decide to create theinternational military tribunal.
(25:43):
They agree that the tribunalwill exercise jurisdiction over
individuals as opposed tostates, and then they come up
with a list of crimes.
And we talked about howLauterpacht managed to get his
idea of crimes against humanityinserted as one of those crimes
in the charter of the Nurembergtrials.
And unfortunately, Lemkin doesnot get genocide included at the
(26:06):
time, but the overarching ideahere for both these men is that
international law should notjust be about law between
states, but rather the law ofmankind, of humanity.
There are many successes that wesee as a result of this story,
(26:27):
and I am just going to highlighta couple of them for you.
For the first time in humanhistory, as a result of the work
of these two men, and of courseas the result of the work of the
allies, the leaders of a stateare put on trial before an
international court for crimesagainst humanity and genocide,
both of them new crimes ininternational law, so both men
(26:51):
get their wishes.
The other success is, that thecreation of this tribunal
demonstrates and is illustrativeof the triumph of justice over
vengeance.
I wanted to share this quotewith you from Jackson in his
closing argument.
He says,"That four great nationsflushed with victory--so these
(27:14):
are the allies-- flushed withvictory and stung with injury
stay the hand of vengeance, andvoluntarily submit their captive
enemies to the judgment of thelaw is one of the most
significant contributes thatpower has ever paid to reason."
So again, a reflection abouttoday and times when emotions
(27:37):
run high, and we all want toinflict vengeance on each other
because we feel that our rightshave been violated.
It would behoove us to rememberthat a civilized humanity
reaches for the rule of law anduses it as the means to bring
about justice.
(27:59):
So"one of the most significanttributes that power has ever
paid to reason." I love thatphrase.
Another incredible successflowing from the work of these
two men is that after the trialends, a new United Nations has
also been created, so all ofthese happenings are happening
(28:21):
at the same time in 1945, the UNGeneral Assembly meets a few
weeks after the trial ends andpasses a resolution, Resolution
95, that lays the path for a newinternational bill of rights.
It's first time in humanhistory.
Which eventually becomes what weknow as the Universal
Declaration of Human Rights thatwas adopted in December 1948.
(28:45):
So it's really Lauterpacht'swork that leads to the Universal
Declaration of Human Rights.
Wow.
What a legacy he has left.
On Lemkin's side, Lemkin workedreally hard and even though his
crime of genocide was notincluded in the Nuremberg
Charter and was not recognizedby the tribunal as a crime under
(29:07):
international law, even thoughthey put it in in the indictment
under the heading of war crimes,the UN General Assembly overrode
the judgment of the court inthis respect and said, no, we
recognize that genocide is acrime under international law,
and they declared it to be andLemkin was exhilarated.
(29:28):
And he sets about then doingwhat he believed should then
happen, which was drafting aconvention on genocide.
And that also gets adopted inDecember 1948, the Universal
Declaration of Human Rights andthe Genocide Convention get
adopted one day apart.
So both of these men's workbasically yields incredible
(29:50):
fruit that we all benefit from.
And then of course, 50 yearslater, the International
Criminal Court comes into being.
And that's a whole nother story.
So some of you may think,"Yeahthings aren't perfect.
Look at look at our world.
And there are still stickingpoints." Yes, there is still
more to come.
(30:10):
We are not done yet.
And some of these things thatthe challenges that need to be
become, include that theuniversal Declaration of human
Rights is not binding.
So the Genocide Convention isbinding as a treaty, but the
Universal Declaration of HumanRights is in some sense
aspirational and not legallybinding.
Also, until now, we don't have acorollary treaty like the
(30:34):
Genocide Treaty for the Crime ofGenocide; we don't have a treaty
for crimes against humanity.
However, the good news is thatsince 2015, the UN International
Law Commission has been workingon drafting such a treaty and
they're still drafting on it.
One of the problems thatPhilippe Sands points to with
these two crimes is that aninformal hierarchy seems to have
(30:57):
emerged that genocide is somehowa more salient crime than crimes
against humanity, that genocideis the crime of crimes.
And it's a very interestingapproach to take because killing
anybody is untenable andshouldn't happen.
And is it really worse to kill awhole group of people on account
(31:22):
of the fact that they'reindividuals or kill a whole
group of people, the same numberor fewer, but because you're
trying to destroy the group?
Can one really say that one isworse than the other?
You're still destroying largenumbers of people for no good
reason.
It shouldn't be happening.
So really in international law,these two crimes are parallel to
(31:45):
each other.
There is no hierarchy, butsomehow in popular parlance and
in our society today, peopleseem to believe that, oh, we
must convict them of genocide orelse it doesn't count.
And what's sad about that isthat we then try to force
bringing people to trial on thegrounds of genocide.
But the bar, the standard toprove genocide, is very high.
(32:08):
That's another one of theproblems.
So very often those attemptsfail, whereas if we had maybe
tried to convict them of crimesagainst humanity we would get
the conviction and they would beheld accountable and they would
be punished.
And at the end of the day, asPhilippe Sands argues, and I
must say I completely agree withhim, isn't that what really
(32:29):
matters?
That people be brought toaccount, not what the label is.
And the last thing that Philippehighlights, which I want to
share with you,'cause I thinkit's important, is that genocide
does have a component ofnational identity to it.
People get very vested in the,oh, my people have been
(32:51):
subjected to genocide.
But it doesn't contribute to theresolution of historical
disputes or make the masskillings any less frequent.
And in fact, it does sometimesexacerbate that sense of us
versus them.
Look at what their group did tomy group, which had been
Lauterpacht's concern.
Okay, so in conclusion we cantoday, given everything we're
(33:16):
faced with, we can drawinspiration and hope from the
work of these two figures,Hersch Lauterpacht and Raphael
Lemkin.
As we become increasinglyconcerned with the needs of the
age we're living in, we can lookto what they did and draw
lessons.
We can reach for and harnesssome of the same qualities they
(33:38):
evinced, the qualities ofstriving for justice, courage,
creativity, and perseverance.
And close again with the wordsof David McCullough who says
that history shows that times ofchange are the times when we are
most likely to learn.
So as we live in this time offerment and difficulty and
(34:03):
turbulence and transition andchaos, this is precisely the
time when we are probably mostready to make the next shift in
our evolution, learn some newlessons, and come up with a
different way of living andmaking this world a better
place.
Okay.
Thank you very much.
(34:24):
I hope you enjoy today'sprogram.
I did want to remind you thatall of these episodes of
Reimagining Our World are nowavailable on your favorite
podcast platforms, so please goon and subscribe for free.
You can still watch them orlisten to them on the CPGG
YouTube channel.
(34:45):
Please let your friends knowthat they can listen to them as
they're taking walks or drivingor doing housework or whatever,
gardening, on their favoritepodcast channel.
That's all for this episode ofReimagining Our World.
I'll see you back here nextmonth.
If you liked this episode,please help us to get the word
(35:06):
out by rating us and subscribingto the program on your favorite
podcast platform.
This series is also available invideo on the YouTube channel of
the Center for Peace and GlobalGovernance, CPGG.
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