THE MEMoRY oF JUSTICE:

THE UNEXPECTED PLACE oF L!'Iv lN INTERNATIoNAL LAw-

A PERSoNAL HISTORY

Philippe Sands-

11 May 2011

CHECKAGAINT DELIVERY

A year ago, mid-way through my fiftieth year, I was invited to deliver a lecture in the city
of Lviv. Located some two thousand kilometres from London, in the westem llkraine, it is not a

place that trips off the tongue or is familiar to many people. In preparing the lecture, it became
apparent that this historic city cradles a rich but troubled past, and having an uncertain future, an

appropriate setting perhaps for the subject I was invited to address: the changes to the
intemational legal order that emerged in the aftermath of the Second World War, the new rules
that promote the human rights of individuals, the emergence of intemational criminal law
prohibiting torture and genocide and other such acts, and the creation ofnew intematjonal courts
and tribunals.l This world of international law - one with which so many people in this room are
deeply involved - did not exist before 7945; lhat was a time when states were free to maim and
to kill and to disappear their own nationals with little, ifany, intemational legal constraint.2

I accepted the invitation for a simple reason: in 1904 my matemal grandfather was bom
in Lviv. In those days it was called Lemberg, the capital of Galicia in the Austro-Hungarian
empire, and I was curious to see formyself what it was like.3 In preparation a great deal more of
the citv's complexity became apparent. In the three decades between 1914 and 1945, it had been
Austrian, then Russian, then Austrian again, then Polish, then Western llkrainian, then Polish

' Professor of Law md Director of the Centre for Inhenational Courts md Tribunals, University College London,
md bmister, Matrix Chmbers. I would like to thank those who have kindly assisted in the orgmisation md
prepilation of this lecture, including in particultr Simone Abel, Jonathm Cooper, the parhers md lawyers at
Freshfields, David Kennedy, Elihu Lauterpacht, Reut Pz, Stuart hoffitt, Natalia Schiffiin, Ihor Lemm, Sofii Dyak,
Alex Dmai, md my reserch assistmts Ioma Hyde md Remi Reichhold.
' PstLlPpE SANDS, ItlrRoDucrtoN AND ACKNoWLEDGEMENTS, THE MANUAL oN INTERNATToNAL LAw AND
TPTBLNALS IX-XI (2d ed. 2010).
.THE EUROPEAN INSTITUTE FOR INTERNATIONAL LAw AND INTERNATIoNAL RELATIONS, PUBLIC INTERNATIoNAL
Lew 2, http://w,eiil.eu/en/componenVcontenVarticle/82-public-intemational-law-.pdf (last visited Ma. 6,2011).
' Brref History of the City o/ rviv, UNIV. oF CAL. SANTA BARBARA HoLocAUsr ORAL HtsroRy PRoJECT,
http://sw.history.ucsb.edu/projects/holocaust,Resources,4ristory_of_lviv.hfin (last visited Mr. 6, 201 I ).
again, then Russian, then German and then-and now-lJkrainian.a To have been subject to nine
sovereigns over so short a period is notable, by any standard.

There was another good reason to go to Lviv: Eli Lauterpacht, who was my teacher and
mentor at Cambridge in the 1980's, and who we celebrate today, had long ago mentioned that his
father Hersch was bom near Lemberg. He had never visited, but wanted to, and over the 1'ears
we had imagined the possibility of taking a trip there, with our families. Unfortunatelv that trip
never happened. In conversation with him, and in preparing last year's lecture, i stumbled across

another curious feature of this city that seems not to have been noticed: it has produced a

disproportionately large number of the remarkable intemational lawyers of the nventieth centtrn-
passing tfuough the law department of the Jan Kazimierz Universitv - nou' the Ivan Fra-nko
University - in the city of Lemberg,rlwow in the years between 1915 and 1938. You n'ould not
know this if you visited Lviv or the law faculty of the Ivan Franko Universit-v. for nouhere is it
publicly recorded that the architects of the modern system of international lan' spent their
formative years in the city, attending the same law faculty and, as I discovered residing *ithin a

few hundred yards of each other. Was there something in the air that informed the r-alues ald
actions of these three men, and many others, future lawyers like Louis Begley, author of ll'ortime
Lies,the Penguin Modem classic describing a childhood in wartime Lwow and that desen-es to
be read by everyone in this room?

Lours SOHN

Let us begin with Louis Sohn, who was a Professor at Harvard Law School. s'hom I fu:-t
met in 1987, in Cairo. The following year he joined the advisory board of a nen' NGO that I >et

up in London, the Centre for Intemational Environmental Law.5 Louis had participaied in the
1972 Stockholm Conference on the Human Environment, and written a very fine anicle atnur
that conference.6 Following his death in June 2006, the Imashington Posl newspaper described

a
Lvrv: A Cny rN rHE CRosscuRxENTs or CuLruRe 13 14 (Joh Czaplicka ed., 2005).
i Ctr. for lnf I En'tl. Law ICIELI, The Center for Intemalional Ewironmenlal LM (C]EU ts pleased to glan irs
Intemational Environmental Lw Award for 2009 to lhe Co-Founders of CIEL, md to the Unned Iotiottt
Environmmt Progyamme, CIEL, http://w.ciel.org,4El%20Awad/lEl_Awrd 2009.html (nming Philipps
Smds as a co-founder of the CIEL) (last visited Ma. 6, 2011).
6
Louis B. Sohn, The Stockhctlm Declaration on the Humm Environmqt,l4 HARV. INr'L. L. J. 423 (1973\.
him as "one of the world's greatest scholars of international law who helped draft the United
Nations charter, define international human rights and design disarmament agreements."T To the
end of his life, he believed in the power of intemational law not only to shape state-to-state

relations, but also to govern relations between individuals and legal entities. His most famous
work was llorld Peace through ll/orld Law, which advocated for a system of world govemment.

He sought security through rules. Given what happened in the early years of his life, that is
perhaps not surprising.

Until recently I did not know that Louis was born in Lemberg, as it then was, on March 1,

1914, in the city's last year at the termjnation of the Austro-Hungarian Empire.s These were

1'ears of almost unimaginable turmoil and insecurity, captured in Edmund de Waal's wonderful,
recently published book, The Hare with Amber Eyes; in his first year, he lived through a Russian

occupation until June 1915, followed by a period of resumed Ausho-Hungarian control, until
October 1918; and then the declaration of a short-lived Westem lJkrainian National Republic, in
November 1918, of which Lviv was the capital;e and then a resumption of the Polish,/ukainian
rvar and the Polish takeover in July 1919. By the time he was six, Louis Sohn had lived under the

rule of four different rulers without setting foot outside the city. He lived through the famous
1918 pogrom against the Jews, of which community he was a member, and a Red Army siege in

August 1920. It is no surprise that his view of the world - and the quest for stability and
protection - would be informed by these events.

In 1935, Louis obtained degrees in science and law at Jan Kazimierz University, staying
on as a young academic researcher under the most difficult conditions: as a Jew, he could only
gain illicit access to the library very early in the moming, and had to remain secretly throughout
the day in order to leave late at night. This was despite the Polish Minorities Treaty of June 28,
1919 - known as the Little Treaty of Versailles - the ground-breaking instrument that initiated
modem human rights law and committed Poland to respect the rights of "all inhabitants of

-
Patr-icia Sullfun, Intematbnal IN expefi Louis Soir, Wesn. PosT, June 14, 2006, at 88, available at
http:r'luuv.u'mhinglonpost.com/wp-dyn/content/article/2006/06/13/AR2006061301542.hbn1 (last visited May 9,
201 I ).
8
SveLt,n -.sapra note 4. at 36 37.
'Jorn Coope& RAPH.AEL LEMKTN AND THE STRUGGLE FoR THE GENoCTDE CONVENTToN 13 (Palgrave Macmillan,
2008).
 Poland without distinction of birth, nationality, language, race or religion."ro He left Lw6w and
Poland, as they then were, in 1939, on one of the last boats before the arrival of the Nazis. He
made his way to Harvard, where he obtained a Masters Degree and then a doctorate. In 1945, he
participated in the San Francisco Conference that led to the creation of the United Nations, as a
member of the U.S. delegation, working alongside Manley Hudson, the American judge at the
Permanent court of Intemational Justice, and with whom he worked closely over many years_ll
Louis' main role at the San Francisco Conference was to assist in drafting the Statute of the
ICJ.'2 From 1961 to 1981, he taught intemational law at Harvard Law School, dunng which
period he served as a leading member of the U.S. delegation to the Law of the Sea Convention.13
His key contribution was on the development of innovative mechanisms for compulsory dispute
settlement.la Without him, it is unlikely that Annex VII of the 1982 Convention on the Law of
the sea- the source ofnumerous cases in recent years would have seen the light ofday.
-

Rarasl LsvrrN

Louis's time in Lw6w overlapped with that of another international lawyer, who is more
widely known outside legal circles: Rafael Lemkin, the father of the l94g Genocide
convention.l5 Lemkin was bom on June 24, 1900, in Bezwodne, then part of Imperial Russia
and now Belarus, one of three children of a Jewish family.t6 He arrived in Lw6w in 1920 to enter
the Jan Kazimierz university, where he studied philology.17 He too had witnessed terrible
conflict - between Germany, Russia, and Poland - and was acutely aware of the culrural

10 see Patricia sullivn, Intemotional Lm Expeft Louis softr, WASH. posr (Jue l-1. 2cr06 r_
http://ww.washingtonpost.com/rp-dynlcontent/Nticlel2006/06n3lAR2006061301542 pf.hfinl C.Mr. Sohn
received degrees in science md law in 1935 from John Casimir University. He stayed onis a resercher
but as a Jes
was forced to enter the library emly in the moming md leave late at night.'). Minorities Treab* bet$.ffi
dr3
Principal Allied md Associated Powers, Jme 28, 1919,225 Consol. T.S.412.
rr
See Demis Hevest, Louis B. Sohn Passionate Supporter of the U.N., Dies at 92,N.y. TrMEs,
June 23, 2006- ar Bl
available at
http://w.nytimes.conl2006l06l23ltsl23sohr.html? r:1&sq-DENNISTo20IIEVESI,%20Louis%20B,9620Sohn.
%20Pmsionate%20Supporter7o20ofD/o20the%20[J.N.,%20Dieso/o20af/o2092.&secse&adml:l &sc51&adxnn]\=
1297144806-cTsqT/zdp0Yshlzglwlufg&pagewanted=print (discussing Louis Sohn's time with Mmiey o. Hud-u
I

t3
See id.
r!
See Sullivan, szp rq note'l .
15
Jmes Fussell, u.S. Holocaust Memorial Museum, Lemkin's wa: origins of the Tem ..Genocide,, (Mtr 1l-
2"003) ltrmscript available at http://w.ushmm.org/genocide/aralysis/details.php?content:2003-03-l
I ).
'" CooPER. .\/pru note 9. at 6.
' ld At l\
 difGrences in and around tlre Lemberg community and threats to minorities. By then, Lemkin
already spoke nine languages, believing that language was the key to understanding cultures and

nations.l8

Once enrolled at the Jan Kazimierz University, he switched to study law, against the
background ofthe assassination ofTalaat Pash4 the Turkish Minister ofthe Interior, in Berlin in
1921, utd the ensuing trial in Berlin of Soghomon Tehilrian, the alleged assassin.re pasha was
said to be one of the main perpetrators of the massacre of Armenians. In June 1921, a Berlin
court acquitted rehilrian, on grounds of insanity.20 This led to a heated exchange between
Lemkin and one of his professors at the Jm Kazimierz University, in the course of which
Lemkin expressed the view that it was the Turkish Minister not the assassin Tehilrian * who
-
should have been hauled before a court for the crime of mass murder.2l The professor was not
impressed. There was no law under which to charge the Turkish Minister, Lemkin records him as

saying. "Let us take the case of a man who owns some chickens," the professor ..He
said. kills
them. why not? It is not your business. If you interfere, it is trespass."22 According to this
account. recorded in Lenrkin's unpublished autobiography, he dismissed the analogy:
"Sovereignty cannot be conceived as the right to kill millions of innocent people," Lemkin
*rote.23

Other cases of the day also raised issues. One concemed a fellow Jewish law student,
Mundyk Steiger, convicted of trying to assassinate the President of Poland whilst on a visit to
Lq'6rv. lr'ho was only saved from execution because a ljkrainian nationalist confessed to the
act.2r Another case was the trial in Paris of Samuei Schwartzbard, tried for the assassination in
1926 of S}'mon Ptliura, a leader of Llkainian nationalists whom Schwartzbard considered to
have been involved in a pogrom that killed his parents.2s The Paris court freed Schwartzbard on

18 -,
IA
'" Id. at 14 15.
'Id.
t'Id.
= Id.
n+q1t Lemksn" Totalty {Jnoficial Man, m PIoNEERS oF GENoCTDE STLJDTES 365, 371 (Smuel Tofien &
-Lmnad Jambs eds., 2002).
Steven
2t l,J
2t
See d. at372.
 grounds of insanity.26 This was a time of political assassinations,
reflecting and raising tensions
amongst the three communities in Lw6w: the poles, the l,rkrainians
and the Jews.

Lemkin obtained a Doctorate in Law from the Jan Kazimierz University

n 7926.27 He
began his professional career as a prosecutor in the District Court
of Berezhany and then in
Warsaw.28 Simultaneously, he acted as Secretary of the Committee
on Codification of the Laws
of the Polish Republic, becoming increasingly interested in the subject
of intemational crimes. In
October 1933' at the meeting in Madrid of the Fifth Conference for
the Unification of penal Law,
he presented his ideas for the recognition of two new crimes in international
law: the crime of
barbariry (outlau ing exterminations by means of massacres. pogroms,
or economic
discrimination), and the crime of vandalism (the destruction of cultural
and artistic works).2e
These were the forebears of what we know today as ..genocide." It is not clear whether he
actually attended the Madrid meeting or provided his ideas in writing
only, as the polish Minister
of Justice opposed his radical ideas, in the context of the polish govemment,s
desire for
rapprochement with the new German govemment of Adolf Hitler.
Nevertheless, by this time
Lemkin was a player on the international circuit with contacts.

In 1939, Lemkin fled poland. He arrived in the united states in 1941

after journeying
through parts of Europe.3' He settled in North carolina, teaching
law at Duke University.3r In
1944' rhe Carnegie Endowment for International Peace published
his most famous worlg lxrs
Rule in occupied Europe, detailing Nazi crimes throughout
Europe.32 This book was the first to
use the word "genocide," apparentiy coined by Lemkin after
hearing Winston churchill refer to

26
See id
27
Tmya Elder' what you sre Be{o:e
!o,u:E!'::: .D^o-cumenting
Raphaer Lemkin's Ltfe by Exproring His Archivat
P"apen. t900 tqig.7 J. CE\ocrDE REs. 469.475 (2005).
'" Si,e Lemkin, vpra note 23. at 372.
:9
MLLIAM A. SCHABAS, GENOCIDE IN INTERNATIONAL LAW: THE
CR]MN OF CR]MES 3O_3I (2d Ed. 2OO9), LCMKiN
credited vespasien V Pella with the concepts md confimed
thuith" t had recomended in 1933 .Vould
amount lo the actual conceprion ol genocide." /d ".i... "
'u c,lrusropuen GILKERsoN, RAFAEL LEMKIN: A BRrEF BTocRAIHJCAL sKErcH (oruille
Intemational Humm Rights at Yale Lm School 1989), H. Schell Jr. center for
arailabie at hnp:llww.plu.edu/social-sciences/documents_
pdf. Lenkin also travelr.a ti" s*"a"i ma tne'souet
fff"tjt""ll*t*emkin%o20Bio unim u.i".. *irirg i, ,rr"
tt
Id.
12
Id see also wtllAM A. SCHABAS, GENOCIDE IN INTERNATTONAL LAW: THE CPJME OF CRTMES l7 (2d ed. 2009).
 Nazi atrocities as "a crime without a name"33 (the term "genocide', is an amalgam, derived from
the Greek word "genos" (meaning race" or clan) and the Latin suffix ..cide,, (which means
'killing')).34 Axis Rute was influential: it was referred to as "the most talked-about
work in the
corridors of the Nuremburg couft in late 1945/erly 1946.-35

Lemkin spent time at the Nuremburg trials, serving as an adviserto the chiefprosecutor,
Justice Robert Jackson.36 He was deeply disappointed that although reference was made to
the
concept of genocide in some individual cases, overall preference was given to the concept of
crimes against humanity:37 this did nor require proof of atrocity being committed against a
particular group. The Nuremburg Tribunal did not endorse or rely on the concept of genocide.
Lemkin devoted the rest ofhis life to the prohibition ofgenocide, the intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such. He became ..a permanent fixture
at the fledgling United Nations organization, where he walked the corridors prodding and
persuading hesitant delegates."38 He personally wrote the frst draft of the
Genocide
Convention,3e and was deeply involved in the intense lobbying that took place at the
United
Nations. His reputation at the time was mixed: he was variously seen as a,.dreamer,,' a..fanatic,',
an "exceedingly patient" man, and a "totally unofficial man." In 1948, his Genocide
Convention
rvas adopted.ao A contemporary account records his reaction: ..[w]hen tlre u.N. General
Assembly approved the convention of December 9, lg4g, reporters who went looking for him
pemkin] to share in his triumph found him in a darkened assembly hall, weeping in solitude."ar

The remaining years of his life were devoted to ensuring the implementation
of the l94g
Convention, which contained enforcement mechanisms allowing for recourse to the ICJ.
It was
these provisions that were relied upon by Bosnia (in 1993) and croatia (in
1999) when they

'.-.See supra 30 md accompmying texr.

'See GTLKERSON- s upra note 30.
" See Schabm. sapra note 32, at 43. The United Nations war Crimes comnission included the chuge of genocide
6 a neP tlpe of intemational crime as coined in Lemkin's book lr is Rule in Occupietl Europe. Rlp-H,qpL LevrrN,
,dxls RULE rN occuPIED ELTRoPE LAws oF occupATroN, AtIALysrs oF GOVERNMENT, pnoposali
ron nrtnrss
fLawbook Exchmge 2005 1

-'Cooper, sapra note 9, at 70.

:'-
Id. atl0-2
tt GtLrrnsoN.
srpra note 30.
-Id
* Li.
tt Id
brought proceedings against Serbia in respect of Srebrenica and Vukovar.a2 On the account of a

recent biography, Lemkin's later life seems not to have been a happy one. He taught at Yale Law

School and at Rutgers University in Newark" lobbied actively in favour of the Genocide
Convention, and died on August 28, 1959, in New York City.a3 He never malried and had no
a5
children.aa It was reported that only seven people attended his funeral

FIERSCH LAUTERPACHT

Lemkin did not live to see the full recognition of his role in developing the Genocide
Convention, a landmark of modern intemational law. Of his various disappointments, none was
greater than the fact that more was not made of the concept of genocide at the Nuremburg trials.

Prominence was given to the concept of crimes against humanity, a term that then (but not now)

related to crimes during times of war, thereby excluding tle events of the 1930s in Germany,

before World War II began.a6 That term - crimes against humanity - emanated from the mind of
Hersch Lauterpacht, who formulated the dehnit:ions of the crimes that were to be enshrined in
Article 6 of the Nuremburg Charter.aT He too was closely connected with Lviv, and he w'as the
father of my mentor, Eli Lauterpacht, who I am so very pleased is able to be with us today.

Hersch Lauterpacht was born on August 16, 1897, in Zolkiew, just a few miles Aom
Lemberg, into a middle-class Jewish family, the second of three children.a8 In 1910, his famih'

See Application hstitufing Proceedings by Bosnia & Hezegovina, Application of the Convention on the
a2

Prevention md Punishrnent of the Crime of Genocide @osn. & Herz. v. Serb. & Montenegro), 1993 LC.J. Gen. List
No. 91, at 1 1Mar. 20, 1993), available ar htp://w.icj-cij.org/dockevfiles/91171.99.pdf Application Instituting
Proceedings by Croatia, Application of the Convention on the Prevention md Punishment of the Crime of Genmide
(Croat. v. Serb.), 1999 I.C.J. Gen. List No. 118, at 2 (July 2, 1999), available a/ http:i/*\av.icj-
cij.org/docket/hles/1 I8/7 125.pdf .
a3
See Coorrn, szpranoteg.
* Id.
ot
ld.
a6
See lntemationalMilitry Tribunal for the Trial of Geman Major Wu Criminals, Judgment: the Law Relating to
Wa Crimes md Crimes Against Hmmity (Sept. 30, 1946), THE AvALoN PRoJEcr BY YALE LAw ScHooL-
available al http://avalon.law.yale.edMmt/judlawe.asp ("The Tribunal therefore cmnot make a general declaration
that the acts before 1939 were crimes against hummity within the meming of the Charter...').
a7
REur ylgl paz, MAKNG IT WHOLE: HERSCH LAUTERPACHT'S RABBINICAL AppRoACH To INTERNATIoNAL LA$
4, n. 14 (2010) (unpublished mmuscript) ("Willim Jackson, Roberl Jackson's son who assisted his father duing the
Nuemberg trials, confimed this to Robinson." J. Robinson, The Contribution of Hersch Lauterpacht to the Theon
of War in STUDTES rN PuBLrc INTERNATToNAL LAw rN MEMoRy oF SIR HERSCH LAUTERPACHT 68 (N. Feinberg ed.-
1e61).
a8
See Cootrn, szp ra note 9.
 moved to a six-room apartment in Lviv, so that he could attend a better quality of secondary
school. the Humanist Gymnasium, where he was said to have been a brilliant student.ae In 1915,
at the outset of the First World War, he was conscripted into the Austrian Army, serving at the

timber yard run by his father.50 At some point, probably in 1915, Lauterpacht began legal studies
at the Jan Kazimierz University, which he continued for eight semesters.sr According to Eli's
biography ofhis father, it is not clear whether he actually obtained a degree: in 1920 he wrote a
letter explaining that he had not been "able to take the hnal examinations because the University
has been closed to Jews in Eastern Galicia."52 However, the University of Lw6w issued a
certificate on April 26, 1917, stating that he took an examination on that day in law and history,
including Roman Law.53 He passed with a "good" result, but whether this led to graduation from
the Faculty of Law was unclear.54

During this period, Lauterpacht became active in the Jewish student movement, and in
1,917. be organized a demonstration to celebrate the publication of the Balfour Declaration, a
notable act given that Austria was at war with Britain at the time.55 ln 191g, following the
termination of the First World War, a conflict arose in Galicia between Poles and Ukrainians,
and the Versailles Peace committee sent a commission to decide upon the frontier.s6 This
committee, known as the curzon committee, selected Lauterpacht, who was twenty-one years
old, as an interpreter, on the basis that he knew both languages and was acquainted with the
territon'.57

re
ELrsu LaurenracHT, THE LrFE oF HERSCH LAUTERIACHT l9 (Cmbridge 2010).
u Id.
jt
LnurERlecHT. s upra note 49.

to
j5
Hms Kelser, Hersch Inuterpachr, 10 INT'L & coMp. L.e. 3 (Jmuary 1967); see d/so LAUTERpACH
.t,
supro note
49.Chs.1&2.
n
Id.
tt
1d The statements about Hersch's work for the Curzon Committee have been impossible to veriff. The records
of
the Committee's work in the National Archive contain no reflection of it. There may be rcme element
of
exaggeration in Dr. Roth's statement because we Lnow from what Amold McNair said about Hersch's
spoken
English at the time ofhis arival in London in 1923 that even then this was limited.
 ln 1919, at the age of twenty-two, he moved to viema to enter university, where he
studied under Hans Kelsen.58 According to a later account he was already ..angered by
... social
inequality, opposed to chauvinism and dreamed of a Jewish Renaissance based on the spirit
of
social justice." His writings were said, even by then, to have ..displayed a vast culture, an
extraordinarily powerful style and clarity ofthinking and exposition ofideas.,,se

He never again lived in Lw6w, although he returned for two short visits. on one
occasion, n 1928, his visit coincided with a Conference on Intemational Law in Warsaw.60
He
was a member of the British group, having moved to Britain in 1923 atthe invitation
of Amold
Macnair to study at the London School of Economics.6l During the Warsaw Conference
banquet
he spoke in English and Polish, and was approached by Mr. Marcowicz, the polish
Chief Justice,
who asked: "How comes it that you speak such good polish and how do you come from
England?"62 The reply was: "Thanks to yolr- numerus clausus.,'63

In Vienna, Lauterpacht obtained a Doctor of Laws and a Doctor of political Studies

degree, and met his wife Rachel steinberg, who was studying piano.6a Eli,s
remarkable
biography ofhis father contains a great deal ofintellectual interest, but also some points
ofdetail
that are not without interest. A letter from one of Hersch's school fiiends describes
their time
together later in Vierura, including running a kitchen for Jewish students: Dr
Fleischer writes: ..as
housekeeper for this kitchen we engaged a woman who turned out to be Adolf
Hitler,s sister!,,6i
Hersch and Rachel moved to London h 1923.66 Lauterpacht attended the London
School of
Economics as a Research Student, studying with Dr. Arnold McNair, who became
a mentor and
a fiiend. In 1928, his only child, Elihu, was bom.67 Hersch taught at the London
school of

t'kl.
se
Letter from Dr Joseph Roth (July I 0, 1960) m ELIHU LAUTERpAcHT, THE LrFE
oF HERSCH LAUTER"A cHT, supra
nole 49, at 21.
@Hmsfielson&LordMcNair,
ry.tltytystgsyuerschLauterpocht,SE[JR.J.INT,LL.30g,3l2(1997),ayairabreat
h,ftp: / / 207 .57
.1 9.226, joumal/Vol 8,No 2/ ar16.pdf.
"' LAUTERPACHT. supra nole 49.
"' Id
'Id.
q
Hans Kelson & Lord McNar, supra note 60. ('In 1923 he mmied Rachel, dauglrter of Michael steinberg,
resident in PaJestine.").
o'
Id., at22.
6Td
u'
Id.

l0
Economics until 1937, when he was appointed Whewell Professor of Intemational Law at

Cambridge University.68 In 1954, he emerged as a candidate for election to the ICJ, nominated

by the United Kingdom.6e He attracted support from the Minister of State, Selwyn Lloyd. who
\\'rote to the Lord Chancellor, Lord Simonds, on July 25, 1954, that his nomination "would meet
rvith universal approval internationally" and would be "the best and the right thing."7o As an
irnmigrant, however, Lauterpacht's nomination raised concems in some high quarters. The
Attorney-General, Sir Lionel Heald MP, q'as concemed that Lauterpacht's nomination would be
badly received by the legal profession and the House of Commons.Tl "It is ... surely desirable,"
RTote the Attorney General, "that our representative at The Hague should both be and be seen to
be thoroughly British, r,r'hereas Lauterpacht cannot help the fact that he does not quali$ in this
rrav either by birth, by name or by education."" Th" objection came too late: the nomination
rr'as already made and Lauterpacht was elected to the World Court in October 1954.73 He served
riith great distinction until 1960, when he died, at the early age of63.7a

Lauterpacht's writings and activities are too numerous to begin to summarize in this short
lecture, but many ofhis works are widely referred to today. It is not an overstatement to describe
him as the great international lawyer ofthe twentieth century. At the heart ofhis approach is, as

one colleague has put it, a belief that intemational law is "a translation of natural decency,
rationality and universal values into its professional language," an approach "based on principles
of legal normativism, legal completeness and absolute justice," so that the system of
intemational law was "'complete,' pluralistic and liberal cosmopolitan."T5 These themes emerge
consistentl-v throughout his writings, from his doctoral thesis on Private Law Sources and
.{nalogies of Internationai law, published, n 1927, through The Function of Law in the

International Communig,, published in 1933, wtd An International Bill of Human Rights,

published in 1945, and up to The Development oflnternational Law by the International Court,

d Lauterpacht, .szp ra note 49, at 82.

td il-1tt
'r Id x .t75
-'
Id. x3l6.
: Philippe Snds, Global govemmce and the inlemotionql judiciory: choosing our judges in 56 CURRINT LEGAL
PROBLE\,rs 48 l. 493 (]\4.D.A. Freemm, ed., 2003).
' Id. at 491.
-'Lauterpachi-
sap ra aote 49, at 419.
' Philippe Smds. i1y Legal Hero: Hersch Lauterpacrl, GUARDIAN, Nov. 10, 2010, qvailable at
http: urrv.ewdim.rc.uk4aw/2010/nov/10/myJegal-hero-hersch-lauterpacht.

l1
published in 1958.76 Lauterpacht's work on An International Bilt of Human Rights drectly and
immediately influenced the text of what became the 1950 European Convention of Human
Rights. In this way Lauterpacht is directly connected to one ofthe most lively political issues of
ow day.

Unusually, for the times, Lauterpacht was also interested in the practical side of
intemational law, including litigation. He edited the Annual Digest of Intemational Law with
Macnair ftom 1929 - now the International Law Reports - and was called to the English Bar in
1935, appearing as counsel for the United Kingdom in two cases at the ICJ.77 Just as Rafael
Lemkin advised Justice Robert Jackson at Nuremburg, so also Lauterpacht assisted in preparing
the trials. He did so, not least, by drafting the text of what became Article VI - the key provision
of the Charter of the Intemational Military Tribunal, better known as the Nuremburg Charter,
adopted on August 8, 1945.78 This recognized that certain acts - crimes against pear:e, war
crimes, and crimes against humanity - were so heinous that they give rise to individual criminal
responsibility, so that no one was to be immune from the jurisdiction of the Tribunal, even a

Head of State.Te It is the comerstone of the modern system of intemational criminal lan,.
Lauterpacht also prepared large parts ofthe frst drafts ofthe opening and closing speeches of
chief British prosecutor Sir Hartley Shawcross.8o Eli's biography records the impact this had:
"It is not difhcult to imagine how Hersch must have felt as he read the remaining sixty-

one pages reciting facts which included the murder ofhis own parents, brother and sister.
It says a good deal for the strength of his character that he never spoke of this to me,
though he may have said something to Rachel, and he never committed his feelings to
paper. But his involvement in the proceedings did leave a mark on him. Rachel later
recalled that, after his refum to Cambridge, he used to cry out an{ully in his sleep at the
recollection ofthe bestialities he heard described."sr

'u Id.
"78 ld.
See U.N. Charter of the Intemational lr4rlitary Tribunal Amex to the Agreement for the Prosecution md
Punislment of the Major wr Criminals of dre Europem Aris ("London Agreement"), Aug. 8, 1945, available at
lrttp://w.unhcr.org/refivorld/docid,/3ae6b396t4.hhnl [hereinafterNzrezburgChaner].
1e
See id. art.6.
8"
Laule4racht- \upra nole 4q. al 27b.
81
Td ati'lq

t2
 Follon'ing the Nuremburg trials, Shawcross wrote to him: "I hope you will always have the
salisfaction in having had this leading hand in something that may have a influence on the future
conduct of international relations."82

Through the turmoil and griefofthe 1930s and 1940s, Lauterpacht remained dedicated to
the rule of law and promoted the protection of human rights for all. He advocated for the
imposition of individual criminal responsibility under international law - prevailing over the
counter argument that only states could incur liability under international law - and the
recognition and prosecution of intemational crimes.83 He contributed directly and forcefully to
the most powerful trends of the modern system of intemational law. It is hard to overstate the
significant role Lauterpacht played in the emergence of the modem system of intemational law.
Folloning his death, Lord Macnair, who had been Lauterpacht's mentor in Britain, wrote that
Lauterpacht's "prominence and success ..- were due to his passion forjustice, his devotion to the
relief of suffering, his transparent sincerity and his gifu of persuasion, both in writing and in
speech."81

L\'rv

As I draw to a conclusion, let me pull together some threads. It will not have escaped
vour attention that what I have said up to this point touches upon, but hardly investigates, many
issues of considerable complexity: Zolkiew; Lauterpacht; international crirninal law; Lemkin; the

human rights of individuais; the new international courts; and Sohn. What are the connections?
B)'anv standard it is striking that three ofthe architects ofthe legal landscape that emerged in
19-15 a-nd that still dominates today should have emerged from the same town and passed through
the same law school, although they never overlapped.

Perhaps some of you in this audience may have spotted a connection. It will be apparent
that I have a professional interest in these matters, in the circumstances in which new rules of

tt
Id at297.
s-'
L.,\urrRPACHr, INTERNAIONAL LAw AND HUrtrAN fucHrS 40-45 (Archon Books 1968) (1950). ..[T]here
TGRSCH
is cogencv in the I'iew that mless responsibility is imputed md attached to persons of flesh md blood. it rests with
no one." /d at 40.
s Hms Kelson Lord McNair,
& szpra note 60, 31 1.

13
intemational law emerged in the aftermath of the brutalities and atrocities of the period around
the Second World War, reflected in texs like the Atlantic Charter of 1941, the United Nations

Charter of 1945, the Nuremberg Charter of 1945, the Universal Declaration of Human fughts of
1948, and the Genocide Convention of 1948. These were instruments that reflected the
aspirations and endeavors ofSohn and Lemkin and Lauterpacht, whose efforts have contributed

directly and substantially to the modem system of human rights and intemational criminal laws.

It would be odd if I were not interested in the people who made the new rules, designed
to fill the gaps left by the patent inadequacies of earlier treaties, such as the 1919 Minorities
Agreement that bound Poland to protect the rights of all minorities in Lw6w. It would be odd not
to note their common connection to that city, and to speculate as to how their personal

experiences - and perhaps shared teachers - will have informed their intellectual inquiries and
their professional activities. And it would be odd, too, to conclude that these factors might be
entirely unconnected, whether by the air and atmosphere of a remarkably cultured, intellectual
city, or by the collective experience ofunimaginable abuse and atrocity.

But there is another reason for my interest, already touched upon: the invitation to deliver
a lecture in Lviv provided me with an opportunity visit the birthplace of my own grandfather,
who was born in Lemberg on May 10, 1904. Maurice Leon Buchholz was the youngest of four
children. At the time of his birth, his parents lived in a small aparhnent on the frst floor of
number 12 Sheptyt'kykh Street. The building still stands, and it was a strange experience to visit
and gain access last October, thanks to the generosity ofthe elderly couple who have lived there
since 1945. The coincidences do not end there: my grandfather's mother Malka - my geat
grandmother - was bom in 1870 in Zolkiew, a small town about 20 kilometres from Lviv, with a

population ofno more than a few thousand: it happens to be the town where Hersch Lauterpacht
was bom, in 1897. I visited Zolkiew; all that remains of the vibrant community into which
Hersch was born are the dilapidated ruins of one of the great synagogues of central Europe,
constructed in the seventeenth century.

As far as I have been able to work out, the family remained in Lemberg until l9l4 or
1915. My grandfather then left for Vienna with his parents and his two sisters (Gusta (b 1895)

14
and Laura (b. 1899); this was shortly after his oldest brother Emil (b. 1893), who had been
conscripted into the Austrian Army, was killed in the First World War. I thought my grandfather
had never returned, but recently my mother gave me access to his papers. It was a surprise to hnd

amongst them a Polish passport in his name dating to 1923, issued in Lw6w. Always believing

him to have been Austrian by reason ofhis place ofbirth, it is now apparent that was mistaken,
Minorities Treaty, Article 4 of which provides that
because of the 1919 Polish
..Poland admits and declares to be Polish nationals, ipso facto and without the

requirement of any formality, persons of German, Austrian, Hungarian, or Russian

nationality who were bom in [Lemberg] ofparents habitually resident there, even ifat the

date of the coming into force of the present treaty they are not themselves habitually
resident there."85

\\hen the 1919 Treaty came into force my grandfather was living in Vienna, so he had to travel
back to Lrv6r,r' in 7923 to obtain a Polish passport. At a stroke, his nationality was transfened
from one state (Austria) to another (Poland). Article 4 may well have saved his life, and I too can
probably have reason to be grateful for the drafting of Article 4. When the Nazis arrived in
Vienna in the spririg of 1938, my $andfather was not entitled to an Austrian passport. Instead he
got a Fremdepass, a pass for foreigners, into which no 'J' for Juden was stamped. With this he

u'as able to escape to France, it seems in January 1939. My mother, aged six months, was also
gi.gen a Fremdepa.ss, and she followed to Paris in July 1939. How she got there I did not know,

until very recently: it seems she owes her survival to a remarkable Christian missionary called
Elsie Maud Tilney, a member of the nonconformist Surrey Chapel in Norwich. But that story, the

details of w-hich are only now emerging, is for another time.

Last October, walking the streets of Lviv, I imagined the possibility that although Eli's

famrl-v and mine would not have known each other socially - the Lauterpachts were

professionals, my great-grandfather was an inn-keeper - they might have crossed each other in

the street, in the weeks before the outbreak of the First World War, or perhaps when the Russians

85
Minorities Treaty betrveen the hincipal AIlied md Associated Powers, June28,1919,225 Consol. T.S.412,
a.arlable athttplllibrary.du.ac.in/mlui/bitshem/hmdlell16T25lAppendixoh20o/o26T.20Index.pdf.)sequence:l

15
 were in occupation in early 1915. or perhaps the Lauterpachts even visited my great-
grandfather's inn?

I doubt, however, that my grandfather could have imagined another possibility: that seven
decades later, sitting in a small apartment one floor above the Grolier poetry bookstore in
Cambridge, Massachusetts, an English grandson ofhis would receive a letter from the
son ofhis
Lemberg neighbor inviting him to take up a first academic position for research in
international
law at Cambridge ln the spring of 1984 I received an unexpected communication. A letter
anived from cambridge, Engrand, in a blue/grey envelope, on hea'lu paper, the kind
that has a
reassuring kind of authority. The letter informed me about a new Research
Centre for
International Law that was to be created at Cambridge, that its author was looking
to appoint a
Research Fellow for a period of four years. Was I interested in applying? The letter came fiom
Eli' I had come to know him a little, during my masters course in intemational law. I
responded
positively, and late that summer received an offer of employment. It was my
frst job. It came
with a room and meals at St. catharine's college, and the princely salary offl000 per quarter.
It
got me started, and Ihave always been hugely gratefur for an opporfunity that has opened
so
many doors and brought me to this lectern today. when Eli Lauterpacht identified
me as a
candidate for the post' he did not know ofthe geographical and historical
connection that tied us.
It is only recently, since I visited Lviv last autumn, that its fuller and most unlikely extent has
emerged.

It is difficult to know what precisely would have caused different individuals liom
that
post-Fist World War generation of Jews in Lemberg to take up the cause
of intemational la*,,
and to seek to remake the field in a new image. Apart rlom their
connection with
Lemberg/Lw6w, the individuals I have written about shared something
else, suffering the loss of
a great number of family members and friends in the Nazi Holocaust. Louis Sohn,s parents
and
entire family were murdered; Rafael Lemkin's parents were killed in Treblinka,
and almost every
other member of his family perished; Eli's grandparents Aron and Deborah
were murdered in
Belzec or Lw6w in 7942 or 1943, the only local family member to survive
being Inka Katz, who
was saved as a twelve year old by a community of nuns in this city
and who, last summer, guided

t6
me rhrough a map of Lw6w as it was in 1938 and explained the proximity of our family's 1ives.86

My grandfather lost his mother, murdered in Treblinka in September 1942, and his sisters.

It is not hard to see how these terrible events would have contributed to an instinct for
justice and the rule of law, even if it is plain fiom the accounts that I have given that such

instincts were in place well before the horror. But there may be other factors: with the assistance
of Professor Oksana Holovko and Mr, Ihor Leman, a PhD student at the University of Lviv, to
u.hom I express my appreciation, we are in the process of tracking down the student files of
Lauterpacht, Lemkir and Sohn, from 1915 to 1936. Some have now been located deep in the

bo*'els of the State Archive of Lviv, and they provide wonderful information: the terms, the

dates. the courses, the lecturers. They seem to show that our three international lawyers had four
teachers in common: the next stage is to see whether, amongst those teachers, one or other

prorided a particular source of inspiration, even in a negative sense, as Lemkin's unpublished

memoir appears to indicate.

One can speculate also on how these three men would react to the world of intemational

1aw today, *'hich despite its numerous enhancements still suffers from many of the same

limitations that characterized the 1920s and 1930s. Ask the Christian community in Baghdad
today whether these new intemational norms afford them adequate protections, or the
Palestinians tn Gaza, or the detainees of Guantanamo, or the citizens of Chechnya. We could go

and ask the 200,000 ethnic Georgians who wete displaced from South Ossetia and Abkhazia in

the 190's rvhat they think about international rules, or to Darfur, or to a myriad of other places.

Yet ll'hatever the inadequacies, the fact is that there exists a baseline ofminimum standards that
e\eD'person in every place is entitled to invoke, in all circumstances, and there is at least some
element of enforcement. For that, much credit is due to the former students of the Jan Kazinierz
Larv School.

Nor can it be knou.n with any degree of certainty what might have caused the same

instincs to be kindled in someone like me, two generations later. We know, of course, that the

u See generalll, LAUTERIACHT, supra note 49 (presenting a background on Hersch Lauterpacht's family before,
dwilg ad after the Holocaust).

17
 memory of events occurring to one's own family can give dse to a thirst for vengeance, a terrible
'sins-of-the-fathers' hatred. But there are otler ways, and the instinct to justice under the rule of
law is one of those altematives. That is the lesson I draw liom the experience of these
remarkable men from Lviv, whose efforts remind us that the challenges we face today are neither

new nor insurmountable. The intemational rule of law imagined by Lauterpacht, Lemkin, and
Sohn is as vital and important today as it was in 1945. It should inspire all victims of abuse and
illegality, irrespective ofcreed, or nationality, or race or religion, a route for which all the people
of Lviv might feel pride, honoring the possibility of moving forward in the spirit ofjustice, rather
than backwards in the spirit ofvengeance.

What is known is that back in 1982, three decades ago, I had the good fortune to sit in
classes taught by Eli Lauterpacht, and he inspired a strong commitment to the rule of law, and in
particular to its practical application. For amongst his many contributions, Eli was amongst the
very first to show that international law was capable of practical application, before local courts,
in arbitration proceedings, and before international courts and tribunals. His contribution too has
been immense, and there is a good reason why he has inspired in so many of his former pupils a
passionate loyalty. He encouraged me to meld scholarship with practise; to spend time in the US;

to set up the NGO that became FIELD; to set up a Centre on International Courts and Tribunals;
to imagine the possibility of a life in international law. For all of those things I express my
thanks to Eli.

whatever the causes of my own direction, one thing is clear: Lviv, or Lw6w, or Lemberg.
has made a singular contribution to the creation and application of the modern intemational legal

order. The city's DNA is impregnated into the modern intemational legal order.87 This could be a

cause for pride and even celebration, even if not yet fully recorded. I hope that the citv's
contribution, and that of tlese pioneering international lawyers, might soon be embraced by
modem Lviv, appropriately recorded by the Lviv university and by the city. Such an act would
pay tribule to memory. and to justice.

Y .!ee Phillip C. Jessup & R. R.

Bater, The Contribution of Srr Hersch Lauterpacht to the Dewlopment of
Intemational Lm,55 AM. J. INr'L L. 97 (1961).

18
Thank you

19