International Law and the Emergence of a New World Order

November 1, 2011
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Karen Naimer

In March of this year, as fighting advanced toward Benghazi, Libyan leader Col. Muammar Qaddafi warned protestors that he would show them “no mercy and no pity.” Anticipating a possible massacre if no preventative steps were taken, the United Nations Security Council invoked the “responsibility to protect” and authorized military action. The development of this 21st-century doctrine — which mandates that each state protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity, or risk intervention by the international community when it fails to do so — represents the significant erosion of the principle of state sovereignty. States, in other words, can no longer slaughter large portions of their own populations without consequences under international law. This is a far cry from Nuremberg, where not a single defendant in the dock was charged for any offenses committed prior to the start of the Second World War because no law existed governing how states should treat their own citizens in a time of peace. Credit for the seismic shift in the legal landscape since 1945 is due in large part to Hersch Lauterpacht (1897-1960) and Raphael Lemkin (1900-1959), arguably two of the most influential international lawyers of the last century. Though their paths differed, their contributions — to prioritize the rights of the individual over the power of the state and to hold accountable those who violate those rights — profoundly impacted the postwar development of international human rights and international criminal law, setting in motion the very system that made this year’s military intervention in Libya both legal and legitimate.

Born to a devout Jewish family in Galicia near what was then known as Lemberg (later Lwów, now Lviv), Lauterpacht studied law in Lwów, Vienna, and London, eventually holding a prominent academic post at Cambridge University. He provided counsel to the British War Crimes Executive at Nuremberg, and eventually became a judge on the International Court of Justice. Lemkin, born into a Jewish home as well, grew up near Bialystok in Czarist Russia, also studied law in Lwów, and served as a public prosecutor in Warsaw until the outbreak of war, when he fled via Sweden to the United States. He taught at Duke and Yale universities and served as an adviser to the War Department, assisting the U.S. prosecutorial team at Nuremberg. Despite their own flights to safety, both Lauterpacht and Lemkin lost most of their families in the Holocaust.

Coming of age in geographic lands whose borders were viciously contested and constantly shifting, Lauterpacht and Lemkin witnessed firsthand the porous reality of statehood. As legal thinkers, both worked to weaken the previously sacrosanct notions of sovereignty that had empowered states to auto-interpret their own international legal obligations, and that had inspired aggressive nationalism and its attendant antisemitism. These émigrés each understood the vulnerability of the individual at the hands of his or her own state and, consequently, they each advocated for supranational legal mechanisms to constrain state power.

Long before it was in vogue, Lauterpacht championed the recognition and entrenchment of fundamental individual rights and freedoms, existing independent of the state, in a codified and enforceable international bill of rights. He also challenged the idea of the state as a metaphysical entity with independent agency, arguing that states do not commit heinous crimes, individuals do, and when those individuals violate the law, they must be held accountable regardless of whether they were acting under color of authority (a concept that would be immortalized in the Nuremberg judgment). Correspondingly, Lauterpacht developed ideas on individual duty and accountability, and formulated the theoretical framework for the “crimes against humanity” offense applied at Nuremberg. And because he saw the necessity of a legally binding bill of rights, he took the bold and unfashionable position of speaking out against the U.N. General Assembly’s vaunted Universal Declaration of Human Rights, attacking it as aspirational, a “mere statement of generalities,” and a setback.

For his part, after Lemkin heard Winston Churchill refer to Nazi barbarism as “a crime without a name,” he made it his lifework to provide one. He invented the term “genocide” to describe the systematic annihilation in war or peace of civilians targeted not in their individual capacity but because of their membership in a national, ethnic, racial, or religious group. And because a state would never hold itself accountable, Lemkin advocated that genocide fall under the special category of a “universal jurisdiction” offense, permitting the crime to be prosecuted anywhere, thereby stripping those who commit such crimes of impunity. By 1945, Lemkin became a one-man campaign for the adoption and ratification of the U.N. General Assembly’s Convention on the Prevention and Punishment of the Crime of Genocide as a universally enforceable mechanism to hold public officials and private individuals accountable for persecution.

It is deeply ironic, of course, that these two men, whose lives were indelibly marked by the monumental breakdown of the rule of law, nevertheless continued to place enormous — almost unfathomable — faith in it, and even, in the case of Lauterpacht, in a fundamentally optimistic view of “the true spirit of man.” Though the legal protections they espoused fell out of fashion with the onset of the Cold War and were by no means sufficient to prevent atrocities since, their concepts have emerged over the last two decades with fresh relevance and renewed force, giving language to a new era of human rights and accountability. Lauterpacht’s and Lemkin’s contributions, each radical for their time, are now the new normal — inspiring litigation around the world under the rubric of universal jurisdiction, and at international tribunals, including the International Criminal Court in The Hague, where there is currently a warrant for Qaddafi’s arrest.

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Karen Naimer, a Truman National Security Fellow, is an attorney specializing in international criminal law and human rights in Cambridge, Mass.

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