Sovereignty and genocide

This last week in The Hague, twenty years after the Dayton agreement, Ratko Mladić was convicted of war crimes and genocide before a UN tribunal.  How did it come to pass that sovereign nations agreed that an international body should be empowered to make such decisions?

The story has been brilliantly told by Philippe Sands, himself a lawyer, in his book East West Street: On the Origins of Genocide and Crimes against Humanity, which won the Baillie Gifford Prize for Non-Fiction in 2016.[1]9780525433729

The book is an extraordinary account of a group of individuals whose lives touched each other in completely unexpected ways, and centres on the town of Lviv, formerly in Poland and now part of Ukraine (also known as Lwow and Lemberg).

Sands found he had a personal reason to be interested in the story, since his own family had roots in a town which passed repeatedly between different nations in the nineteenth and twentieth centuries.  The 100,000 Jews of the town were the tragic victims of this grim history, and the most significant perpetrator of their destruction was the Governor-General of the occupied Polish territories, Hans Frank.  The book is in part a story of how Frank came to be prosecuted, and executed, as part of the Nuremberg trials.

And it was in the law faculty of Lviv that two men, Hersch Lauterpacht and Rafael Lemkin, both studied before pursuing separate careers which led them both to a passionate engagement in the matter of human rights.  Both worked in the uneasy knowledge that their home was in danger, and in the course of time would have to face the fact of the death of many of their relatives.  Utterly different in temperament, they also differed on the precise mechanism for bringing justice to crimes of overwhelming scale.

Hersch Lauterpacht
Raphael Lemkin

For Lemkin, the Armenian massacres were of critical significance as offering a case study in the necessity of restrictions on a country’s sovereign rights.  Self-defence could not be a cover for such acts, and it was Lemkin who coined the word genocide to describe deliberate attempts to destroy a people.  He campaigned hard for genocide to be included in the Nuremberg Trials.

Lauterpacht probably did not graduate from Lviv owing to the exclusion of the Jews, and left for Vienna, and then the LSE.  In 1937 he was appointed to a position in Cambridge.  He would represent the United Kingdom on the International Court of Justice, the body on which we are for the first time no longer represented after the recent round of appointments.

Lauterpacht’s contribution was to have drafted the language of Article 6 of the Nuremburg charter,and thereby he made the case for crimes against humanity, war crimes and the crime of aggression to become part of modern international law.  It was Lauterpacht who wrote much of the summing up given by Sir Hartley Shawcross, while Lemkin advised the American side.

Despite differences in temperament, both men sought a means in law by which a higher court could stand above the nation state.  Their difference lay specifically in the charge of genocide, which Lauterpacht thought was difficult to define and therefore legally problematic, but that it also might undermine his own fundamental concern with the right of the individual human being.

Lemkin’s interest in minority groups stemmed from a fundamental conviction, of immense significance.  Lemkin told the story that in his youthful debates with his professors over the Armenian massacres, one said ‘Let us take the case of a man who owns some chickens.  He kills them.  Why not?  It is his business. … When you interfere with the internal affairs of a country, you infringe upon that country’s sovereignty.’  Lemkin spent the rest of his life contesting that claim.

Sands’ book has so many strands, personal and historical, but this is one.  Lauterpacht’s achievement at Nuremberg was to ensure that, as Sands puts it ‘the sovereignty of the state would no longer provide absolute refuge for crimes on such a scale, in theory at least.’  Lemkin would have to wait before he saw some of his ideas enshrined in the law under which Mladić as convicted.

Frank on Trial at Nuremberg

The issue at stake for me is what notion of sovereignty permits such a step?  If sovereignty is not always and everywhere supreme, what are the grounds on which it can be overruled?  Clearly there are moments where there are competing sovereignties, which can be managed through customary law.  And one can hardly say that the issue of the overruling of national sovereignty is undisputed, as the complex arguments which led to the adoption and contestation of the ‘Right to Protect’ show.

One could argue that sovereignty is absolute except in extremity.  Yet it does not seem to me that invoking Lauterpacht and Lemkin (or R2P) to show that national sovereignty is not always supreme need be regarded as generalising from exceptions.  Rather, it might be that what we call sovereignty needs to be reconceptualised as much more complex, contingent and case-specific.

At least one way of opening this up it to reconsider our metaphors.  Does pooling sovereignty assume a finite quantity which can be kept in its own jam-jar of national interest, or poured into an indiscriminate international bath?  Or does it imply an element characterised by fluidity and whose nature is thwarted by artificial constraint?  And what would happen if we conceptualised sovereignty differently, as something which is several and diverse, or as Bataille had it, not as an object but as an aspiration which we are doomed to seek but never possess?[2]

For Lauterpacht, individuals carried ultimate responsibility, and so it was that seventy-one years ago, Frank was rightly convicted and executed for his crimes, and hence there is no argument from state sovereignty which should have protected Mladić.  However the idea that individuals carry responsibility, but also that they have rights, complicates any banal reading of sovereignty, just as many modern readings of Hobbes or Spinoza have found that both see the sovereign as dependent on and constrained by the community whence power is derived, and on a continuous basis.[3]

As Lauterpacht put it, international law was designed to accommodate the concerns of the international community.  It is a construction, ‘at most, a generalization of a past period of emotivity …  [T]he way is open, in this respect, to such beneficent changes as the moral sense of mankind, the necessities of international peace and the enduring purposes of the law of nations may require.’[4]  We might therefore conclude that we might be judged by the generosity with which we place the higher good over local concerns, and to use another metaphor, that the aggregation of local sovereignties into larger edifices of conjoint responsibility is, for all that it is complex and problematic, and for all that it might require a simultaneous reinforcement of local responsibilities, a sign of progress.

Sands’ book is not about this, and he would undoubtedly make any argument more subtly than I can.  Yet one of the book’s enduring qualities, beyond its beautifully constructed narrative, is to draw the connections between individual lives, global events, and arguments of law and politics.  It is at one level about one of the most tragic episodes in European history, and one must always be sparing in generalising from a moment of inexpressible horror.  But it is also a story about one of the arguments which resituated the locus of responsibility and rights.  This hard-won argument demanded and demands a more subtle conception of the work which sovereignty does as an intellectual and legal concept, and that has universal traction, significance and relevance.

[1] P. Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity, 2016.

[2] G. Bataille, Literature and Evil, 1973, 193-4.

[3] C. Barbour, G. Pavlich (eds.) After Sovereignty: On the Question of Political Beginnings, 2009, is a way in to a substantial literature.

[4] International Law and Human Rights (1950), 4-5.

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